H. E. Stoudt & Son, Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1955

114 N.L.R.B. 838 (N.L.R.B. 1955)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were nonpartisan remarks and contained no threat of reprisal or-
promise of benefit. To deny the Employer the right to speak to its
employees, under these circumstances, the Employer contends, would
be a denial of the right of free speech.
We cannot agree with the Employer's contentions. The speech here
of an important management representative made during time con-
trolled and paid for by the Employer at a nonroutine meeting of em-
ployees assembled by supervisory announcement cannot be considered
in the nature of informal remarks to scattered groups of employees
or remarks made during employees' free time as the Employer seems
to urge. Nor can the'remarks made be described as nonpartisan when
the Employer clearly expressed its preference for a no-union vote.
Moreover, the Board has held that "Violation of the Peerless Plywood
rule, as in the case of improper electioneering ... constitutes ground
for setting aside an election, entirely apart from the considerations
which accompany findings of specific interferences with, an elec-
tion.... It is sufficient that Peerless Plywood speeches tend to pre-
vent a free election; the actual effect upon the voters in any case-even
if it could be measured-is not material...." 2 Accordingly, we agree
with the Regional Director that the Employer by its speech of July 27,
violated the proscription of the Peerless Plywood rule.' We shall
therefore set aside the July 28, 1955, election and direct a new election.
[The Board set aside the election held on July 28, 1955.]
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
2 The Great Atlantic & Pacific Pea Company, 111 NLRB 623.
8 See Fuller Ford, Inc., 113 NLRB 169; Rib let Welding and Mfg. Corp ., 112 NLRB 712.
H. E. Stoudt & Son, Inc. and Paul C. Seng and Local 36, Inter-
national Association of Bridge , Structural & Ornamental
Ironworkers, AFL, Party to an agreement
Weisker, Piper & French, Inc . and Paul C. Seng and Local 36,
International Association of Bridge, Structural & Ornamental
Ironworkers, AFL, Party to an agreement
Local 36, International Association of Bridge, Structural & Or-
namental Ironworkers , AFL, and Robert L. Schwartz , Business
Agent and Paul S. Seng and H . E. Stoudt & Son, Inc., and
Weisker, Piper & French, Inc., Parties to an agreement. Cases
Nos. 4-CA-11,02, 4-CA-11$3, and 4-CB-233. November 1, 1955
DECISION AND ORDER
On May 16,1955, Trial Examiner" Eugene F. Frey issued his Inter-
mediate Report in the above-entitled consolidated proceeding, finding
114 NLRB No. 130.
H. E. STOUDT & SON, INC. 839
that the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, Respondent
Stoudt and the General Counsel filed exceptions to the Intermediate
Report and briefs in support thereof.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following corrections, additions,
and modifications : -
1. The Intermediate Report states that Respondent Stoudt admit-
ted, and the Trial Examiner found, that Stoudt was engaged in com-
merce within the meaning of the Act. Actually Stoudt contested, at
the hearing as well as in its exceptions and brief, the assertion of juris-
diction over it. It maintained that it was engaged in an essentially
local construction enterprise and that, although its operations during
1954 met the Board's jurisdictional test, that was not the case in 1953,
and might not be true in future years. All the events involved in the
proceeding occurred during 1954. On the basis of the jurisdictional
data set forth in the Intermediate Report, we find that Respondent
Stoudt is engaged in commerce within the meaning of the Act, and
that it will effectuate the policies of the Act to assert jurisdiction
over it.'
2. The Trial Examiner found that Respondent Weisker, the sub-
contractor, was the direct employer of the ironworker employees on
the project here involved. He also found that Respondent Stoudt, the
prime contractor, was a joint employer of the ironworkers within the
meaning of Section 2 (2) of the Act. Respondent Stoudt takes excep-
tion to this finding. We agree with the joint employer finding for the
reasons stated by the Trial Examiner, particularly the close business
relationship between Stoudt and Weisker, the extent to which Stoudt
controlled Weisker's employment policies with regard to the iron-
workers, and Stoudt's participation with, or on behalf of, Weisker
in the conduct constituting the violations found herein.'
3. The Trial Examiner found that on or about August 4, 1954, the
12 complainants were hired by Respondent Weisker's general foreman
1 See Calera Mining Company, 97 NLRB 950.
f Oregon Coast Operators Association, et al , ] 13 NLRB 1338 , and cases cited therein ;
and see United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry, et al. ( Carrier Corporation ), 112 NLRB 1385 , where the Board stated
that ". . . because of the business relationship between Carrier [ prime contractor) and
Turner [ subcontractor ], the former was in a position to influence effectively the personnel
policies of the latter."
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as ironworkers, to begin work on August 6 on the project here involved-
Respondent Schwartz, business agent of the Respondent Union, heard
of their being hired on the morning of August 6. He immediately
called upon Stoudt and demanded that the complainants be refused
employment, although they were all members of the Union, because he-
had not referred them to the project from the union hall. He de-
manded further that, in accordance with various discussions by the
Respondents prior to August 6, the practice be followed of hiring as
ironworkers only members sent by him from the union hall. Stoudt
agreed that the complainants would not be put to work, and that only
members approved by Schwartz and sent through the union hall would
be employed as ironworkers. When Piper, a partner in the Weisker
firm, was apprised of the situation, he likewise agreed to reject the com-
plainants, and to follow the practice of hiring as ironworkers only
members approved by Schwartz and sent through the union hall. Pur-
suant to these agreements, the complainants were told on August 6, by
both Stoudt and Piper, that they were not going to be put to work be-
cause of the hiring arrangement with Schwartz. Only the men re-
ferred by Schwartz were hired as ironworkers. None of the complain-
ants was thus referred or hired.
We find, as the Board has in numerous cases , that the Respondent
employers, by acquiescing on August 6 in the Respondent Union's de-
terminations as to the identity of those who should work at the project,
violated Section 8 (a) (3) and (1) of the Act.3 We find further that,
by agreeing with Schwartz on August 6 that the complainants would
be rejected because they had not been refer red by Schwartz through the
union hall that the men on Schwartz' list would be hired in their stead,
and that a practice would be followed of employing as ironworkers
only members referred by Schwartz through the union hall, the Re-
spondent employers assisted, and encouraged membership in, the Re-
spondent Union. Accordingly, we find that by their course of conduct
on August 6, including their oral agreements with Schwartz and the
statements to the complainants by Stoudt on behalf of Respondent
Stoudt, and by Piper on behalf of Respondent Weisker, that they were
committed to hiring only ironworkers referred by Schwartz through
the union hall, the Respondent Employers assisted and contributed
support to the Respondent Union in violation of Section 8 (a) (2) and
(1) of the Act,' and interfered with, restrained, and coerced employees
S Imparato Stevedoring Co., 113 NLRB 883; Bickford Shoes, Inc ., 109 NLRB 1346, 1348;
American Pipe and Steel Corp., 93 NLRB 54, 56.
AHall Electric Company , 111 NLRB 68; Bickford Shoes, Inc, 109 NLRB 1346, 1349;
Construction Specialties Company, 102 NLRB 1542, 1544, 1558.
Although the Trial Examiner found that the Respondent Employers had violated Sec-
tion 8 (a) (2) of the Act, he did not recommend that the Board include in its Order, as is
usual in such cases, the requirements that they cease and desist from assisting or support-
ing the Union , and withhold recognition from the Union until certified . Ile did not
H. E. STOUDT & SON, INC. 841
in the exercise of rights statutorily guaranteed to them, in violation of
Section 8 (a) (1) of the Act.
We likewise find, as did the Trial Examiner, that the Respondent
Union and Respondent Schwartz, by demanding on August 6 that
the Respondent Employers refuse employment to the complainants,.
and that they agree to follow the practice of hiring as ironworkers-
only those members referred by the union business agent through the
union hiring hall, violated Section 8 (b) (2) and 8 (b) (1) (A) of'
the Act.'
The Trial Examiner found that various agreements entered into by
the Respondents prior to August 6 constituted unlawful closed-shop
hiring arrangements in violation of Section 8 (a) (1), (2), and (3)
and Section 8 (b) (2) and 8 (b) (1) (A) of the Act. In view of our
findings as to the violations committed by the Respondents on August
6, and the scope of our Order on the basis of such violations, we con-
sider it unnecessary to pass upon the nature and effect of these earlier-
agreements.'
4. The Trial Examiner found that Complainant O'Donnell had'
worked throughout the project and should therefore not be included
in his recommended back-pay order. The General Counsel excepted
to this finding. It appears, from the entire record, that John M.
O'Donnell was employed throughout the project, but that his son, John.
J. O'Donnell, 1 of the 12 complainants, was never employed on this
project. It seems clear that the Trial Examiner inadvertently con-
fused the two O'Donnells, and that his recommendation that Com-
plainant O'Donnell should not participate in the back-pay award was
based upon this confusion and not upon a finding on the merits of
Complainant O'Donnell' s case. We find, under all the circumstances,
that Complainant O'Donnell stands in the same position as the other 11
complainants, and is entitled to be made whole to the same extent.
5. The Trial Examiner directed his recommended back-pay order
against Respondent Schwartz as well as against the Respondent Em-
ployers and the Respondent Union. However, as the Board does not
indicate whether this omission was because the project in question had been completed or
for some other reason. Although the General Counsel filed exceptions in this ease, he
took no exception to the failure to include such a recommendation . Under all the circum-
stances, we shall not include these provisions in our Order . See Pacific Intermountain
Express Company, 107 NLRB 838 , 850, footnote 29, where the Board said:
The adoption of the usual order requiring the Company to cease giving effpet to its
agreement with the Respondent Union and to withhold recognition from the Union as
the representative of its ' employees, unless and until th tt organization shall have
been certified by the Board ( see Julius Resnick Inc , 86 NLRB 38 ), is discretionary
with the Board Such remedy need not be applied where it would not effectuate
the policies of the Act . Construction Specialties Company, 102 NLRB 1542
5 Daugherty Company, Inc., 112 NLRB 986.
e Seattle District Council of Carpenters , et at ( Cisco Construction Company), 114
NLRB 27; Hall Electric Company, supra
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hold union agents liable for back pay, we shall modify the recom-
mended order in this respect 7
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, H. E. Stoudt & Son, Inc., its officers, agents,
successors, and assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in Local 36, International Associa-
tion of Bridge, Structural & Ornamental Ironworkers, AFL, or any
other labor organization, by discharging or causing the discharge
of its own or subcontractors' employees, or refusing to hire or causing
the rejection of hire of its own or subcontractors' prospective employ-
ees, because they are not members of said labor organization, or have
not been hired or obtained clearance, job referral, or approval through
or from said labor organization and Robert L. Schwartz, its business
agent, or either of them, or by discriminating against them in any
other manner in regard to their hire or tenure of employment, or any
term or condition of employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
(2) Entering into, enforcing, or giving effect to, at any of its
projects within the territorial jurisdiction of the above-named labor
organization, any arrangements, agreements, or practices, oral or
written, with Respondent Weisker, any other subcontractor, or said
labor organization, or Robert L. Schwartz, its business agent, or any
other labor organization, which require its own employees or prospec-
tive employees, or those of its subcontractors, to be members of the
above-named labor organization, or to be hired or obtain clearance, job
referral, or approval through or from said labor organization and
Robert L. Schwartz, or either of them, as a condition of employment,
or entering into, enforcing, or giving effect to any extension, renewal,
modification, or supplement thereof, or any superseding arrangement,
agreement, or practice with such subcontractors, labor organizations,
or Robert L. Schwartz containing similar requirements, except to
the extent permitted by Section 8 (a) (3) of the Act.
(3) In any other manner interfering with, restraining, or coercing
such employees or prospective employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a
71nternatsonal Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 864, AFL, 112 NLRB 1289; Hall Electric Company, 111 NLRB 68; Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
AFL, Local 179, 110 NLRB 287, 288.
H. E. STOUDT & SON, INC. 843
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze and compute the amounts of
back pay due under the terms of this Order.
(2) Post copies of the notice attached hereto marked "Appendix
A" 8 at its principal office and place of business in Allentown, Penn-
sylvania, and at all sites, if any, within the territorial jurisdiction of
Respondent Union, where it is now engaged in construction or in-
stallation work. Copies of said notice, to be furnished by the Regional
Director for the Fourth Region, shall, after being duly signed by its
representative, be posted by it immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to its employees
or prospective employees, and those of its subcontractors, are cus-
tomarily posted. Reasonable steps shall be taken by said Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(3) Notify the Regional Director for the Fourth Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
II. The Respondent, Weisker, Piper & French, Inc., its officers,
agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in Local 36, International Associa-
tion of Bridge, Structural & Ornamental Ironworkers, AFL, or any
other labor organization, by discharging employees or refusing to
hire prospective employees because they are not members of said la-
bor organization, or have not been hired or obtained clearance, job
referral, or approval through or from said labor organization and
Robert L. Schwartz, its business agent, or either of them, or by dis-
criminating against them in any other manner in regard to their hire
or tenure of employment, or any term or condition of employment, ex-
cept to the extent permitted by Section 8 (a) (3) of the Act.
(2) Entering into, enforcing, or giving effect to, at any project on
which it may be working within the territorial jurisdiction of the
above-named labor organization, any arrangements, agreements, or
practices, oral or written, with Respondent Stoudt or any other con-
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor, or said labor organization, or Robert L. Schwartz, its business
agent, or any other labor organization, 'which require employees or
prospective employees to be members of said labor organization or to
be hired or obtain clearance, job referral, or approval through or from
said labor organization and Robert L. Schwartz, its business agent, or
either of'them, as a condition of employment, or entering into, en-
forcing, or giving effect to any extension, renewal, modification, or
supplement thereof, or any superseding arrangement, agreement, or
practice with such contractors, labor organizations, or Robert L.
Schwartz containing similar requirements, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
(3) In any other manner interfering with, restraining, or coercing
employees or prospective employees in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Preserve and make available to the Board or its agents, upon
request, records to the extent and for the purpose stated in paragraph
numbered I b (1) above.
(2) Post copies of the notice attached hereto marked "Appendix
B" 9 at its principal office and place of business in Fairfield, Connecti-
cut, and. at all sites, if any, within the territorial jurisdiction of Re-
spondent Union where it is now engaged in construction and installa-
tion work. Copies of said notice, to be furnished by the Regional
Director, shall be signed, posted, and maintained in the manner and to
the extent set forth in paragraph numbered I b (2) above.
(3) Notify the Regional Director in writing, within ten (10) days
from the date of this Order, what steps it has taken to comply herewith.
III. Respondent Local 36, International Association of Bridge,
Structural & Ornamental Ironworkers, AFL, its officers; represent-
atives, agents, successors, and assigns, and Respondent Robert L.
,Schwartz, shall:
a. Jointly and severally cease and desist from :
(1) In any manner causing or attempting to cause H. E. Stoudt &
Son, Inc., or Weisker, Piper & French, Inc., or both, to discharge
employees or refuse to hire prospective employees because they are
not members of Respondent Union or have not been hired or obtained
clearance, job referral, or approval through or from Respondent Union
and Robert L. Schwartz, its business agent, or either of them, or to
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, 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."
H. E. STOUDT & SON, INC. 845
discriminate against such employees or prospective employees in any
•other manner lit regard to their hire or tenure of employment, or any
.term or condition of employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
(2) Entering into, enforcing, or giving effect to, at any projects
,on which either or both of said Companies may work within the
territorial jurisdiction of Respondent Union, any arrangements,
.agreements, or practices, oral or written, with either or both of said
,Companies, which require their employees or prospective employees
,to be members of Respondent Union or to be hired or obtain clear-
ance, job referral, or approval through or from Respondent Union
and Robert L. Schwartz, its business agent, or either of them, as a
condition of employment, or entering into, enforcing, or giving effect
to any extension, renewal, modification, or supplement thereof, or
any superseding arrangement, agreement, or practice with either or
both of said Companies containing similar requirements, except to
the extent permitted by Section 8 (a) (3) of the Act.
(3) In any other manner restraining or coercing employees or
prospective employees of H. E. Stoudt & Son, Inc., or Weisker, Piper
.& French, Inc., or both, in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
•of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Notify H. E. Stoudt & Son, Inc., and Weisker, Piper & French,
Inc., in writing, that they have no objection to the hiring and employ-
ment, by either or both of said companies, of Paul C. Seng, Robert
Burns, Joseph Tibensky, Michael F. Foley, Edward Morrisey, Patrick
T. Seckler, John Seng, William Lynn, Walter Broadbent, Lester
Alexander, James P. Dewar, and John J. O'Donnell, or any other
person, without prior or subsequent clearance, job referral, or approval
from them or either of them, on any projects on which either or both
of said Companies may work within the territorial jurisdiction of
Respondent Union, and mail a copy of such notification to each of the
above-named individuals.
(2) Post at its business office and meeting hall in Allentown, Penn-
sylvania, and all other places where notices to members of Respondent
Union are customarily posted, copies of the notice attached hereto
marked "Appendix C." 10 Copies of said notice, to be furnished by
the Regional Director for the Fourth Region, shall, after being duly
signed by the representative of Respondent Union, and by Respondent
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwartz, be posted by them immediately upon receipt thereof and
maintained by them for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to the members
are customarily posted. Reasonable steps shall be taken by said Re-
spondents to insure that said notices are not altered, defaced, or
covered by any other material.
(3) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto as "Appendix C" for posting, if
Respondents Stoudt and Weisker are willing, at all of their projects,
if any, within the territorial jurisdiction of Respondent Union, in
places where notices to employees and prospective employees are
customarily posted.
(4) Notify the Regional Director for the Fourth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps they
have taken to comply herewith.
IV. The Respondents, H. E. Stoudt & Son, Inc., Weisker, Piper &
French, Inc., and Local 36, International Association of Bridge,
Structural & Ornamental Ironworkers, AFL, shall jointly and sev-
erally make whole each of the individuals named in paragraph
numbered III b (1) above, including John J. O'Donnell, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy," as modified herein, for any loss of pay he may have
suffered as a result of the discrimination against him.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees and ap-
plicants for employment, and those of our subcontractors, that :
WE WILL NOT encourage membership in Local 36, International
Association of Bridge, Structural & Ornamental Ironworkers,
AFL, or any other labor organization, by discharging or caus-
ing the discharge of our own or our subcontractors' employees,
or refuse to hire or cause the rejection of hire of our own or our
subcontractors' prospective employees, because they are not mem-
bers of the above-named labor organization, or have not been hired
or obtained clearance, job referral, or approval through or from
said labor organization and Robert L. Schwartz, its business agent,
or either of them, or by discriminating against such employees or
prospective employees in any other manner in regard to their
hire or tenure of employment, or any term or condition of em-
H. E. STOUDT & SON, INC. 847
ployment, except to the extent permitted by Section 8 (a) (3) of
the Act.
WE WILL NOT enter into, enforce, or give effect to, at any of
our projects within the territorial jurisdiction of the above-named
labor organization, any arrangements, agreements, or practices,
oral or written, with Weisker, Piper & French, Inc., any other
subcontractor, or the above-named labor organization, or Robert
L. Schwartz, its business agent, or any other labor organization,
which require our own employees or prospective employees, or
those of our subcontractors, to be members of the above-named
labor organization, or to be hired or obtain clearance, job referral,
or approval through or from said labor organization and Robert
L. Schwartz, its business agent, or either of them, as a condition
of employment; nor will we enter into, enforce, or give effect to
any extension, renewal, modification, or supplement thereof, or
any superseding arrangement, agreement, or practice with such
subcontractors, labor organizations, or Robert L. Schwartz, con-
taining similar requirements, except to the extent permitted by
Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce such employees or prospective employees in the exercise of
the rights guaranteed in Section 7 of the Act, except to the ex-
tent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole Paul C. Seng, Robert Burns, Joseph
Tibensky, Michael F. Foley, Edward Morrisey, Patrick T. Seck-
ler, John Seng, William Lynn, Walter Broadbent, Lester Alexan-
der, James P. Dewar, and John J. O'Donnell, for any loss of pay
each may have suffered as a result of our discrimination against
him.
H. E. STOUDT & SoN, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees and appli-
cants for employment that :
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT encourage membership in Local 36, International,
Association of Bridge, Structural & Ornamental Ironworkers,.
AFL, or any other labor organization, by discharging employees
or refusing to hire prospective employees because they are not
members of the above-named labor organization, or have not
been hired or obtained clearance, job referral, or approval through
or from sa id labor organization and Robert L. Schwartz, its busi-
ness agent, or either of them, or by discriminating against them
in any other manner in regard to their hire or tenure of employ-
ment, or any term or condition of employment, except to the ex-
tent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT enter into, enforce, or give effect to, at any project
on which we may be working within the territorial jurisdiction
of the above-named labor organization, any arrangements, agree-
ments, or practices, oral or written, with H. E. Stoudt & Son, Inc.,.
any other contractor, or the above-named labor organization, or
Robert L. Schwartz, its business agent, or any other labor organi-
zation, which require employees or prospective employees to be
members of said labor organization or to be hired or obtain clear-
ance, job referral, or approval through or from said labor organi-
zation and Robert L. Schwartz, its business agent, or either of
them, as a condition of employment, nor will we enter into, en-
force, or give effect to any extension, renewal, modification, or
supplement thereto, or any superseding arrangement, agreement,
or practice with such contractors, labor organizations, or Robert
L. Schwartz, containing similar requirements, except to the ex-
tent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees or prospective employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL make whole Paul C. Seng, Robert Burns, Joseph
Tibensky, Michael F. Foley, Edward Morrisey, Patrick T. Seck-
ler, John Seng, William Lynn, Walter Broadbent, Lester Alexan-
der, James P. Dewar, and John J. O'Donnell, for any loss of pay
each may have suffered as a result of our discrimination against
him.
WEISKER, PIPER & FRENCH, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
H. E. STOUDT & SON, INC.
APPENDIX C
849
NOTICE TO ALL MEMBERS OF LOCAL 36, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, AFL, AND TO
ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT WITH, H. E.
STOUDT & SON , INC., AND WEISKER, PIPER & FRENCH, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT in any manner cause or attempt to cause H. E.
Stoudt & Son, Inc., or Weisker, Piper & French, Inc., or both, to
discharge employees or refuse to hire prospective employees be-
cause they are not members of the undersigned labor organization
or have not been hired or obtained clearance, job referral, or
approval through or from us, or either of us, or to discriminate
against such employees or prospective employees in any other
manner in regard to their hire or tenure of employment, or any
term or condition of employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
WE WILL NOT enter into, enforce, or give effect to, at any projects
on which either or both of the above-named Companies may work
within the territorial jurisdiction of the undersigned labor or-
ganization , any arrangements , agreements , or practices , oral or
written, which we may have with either or both of said Companies,
which require their employees or prospective employees to be
members of the undersigned labor organization or to be hired or
obtain clearance, job referral, or approval through or from us or
either of us, as a condition of employment, nor will we enter into,
enforce, or give effect to any extension, renewal, modification, or
supplement thereof, or any superseding agreement, arrangement,
or practice with either or both of said Companies containing simi-
lar requirements, except to the extent permitted by Section 8 (a)
(3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
or prospective employees of H. E. Stoudt & Son, Inc., or Weisker,
Piper & French, Inc., or both, in the exercise of the rights guaran-
teed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL notify H. E. Stoudt & Son, Inc., and Weisker, Piper &
French, Inc., in writing, and will furnish copies of such notifica-
tion to the respective persons named below, that we have no objec-
tion to the hiring and'employment of said persons and any other
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person by either or both of said Companies, without prior or sub-
sequent clearance , job referral , or approval from us or either of
us, on any projects on which either or both of said Companies may
work within our territorial jurisdiction :
Paul C. Seng John Seng
Robert Burns William Lynn
• Joseph Tibensky Walter Broadbent
Michael F. Foley Lester Alexander
Edward Morrisey James P. Dewar
Patrick T. Seckler John J. O'Donnell
The undersigned labor organization will make whole each of the
above-named persons for any loss of pay he may have suffered as a
result of the. discrimination against him.
LOCAL 36, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL & ORNAMENTAL IRONWORKERS, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
ROBERT L. SCHWARTZ.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon original and amended charges filed by Paul C. Seng, an individual, the
General Counsel for the National Labor Relations Board issued a consolidated
complaint on October 21, 1954 , against Respondents H. E. Stoudt & Son, Inc. ( herein
called Stoudt ), Weisker, Piper & French, Inc. (herein called Weisker ), Local 36,
International Association of Bridge , Structural & Ornamental Ironworkers, AFL
(herein called the Union ), and Robert L. Schwartz , business agent of said Union
(herein called Schwartz ), alleging violations of Section 8 (a) (1), (2 ), and (3) of
the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act,
by Stoudt and Weisker, and of Section 8 ( b) (1) (A) and ( 2) thereof by the Union
and Schwartz . Copies of the complaint , charges, and order consolidating cases were
duly served on all Respondents and the Charging Party. Respondents filed answers
denying the commission of the unfair labor practices alleged.
Pursuant to notice, a hearing was held in Allentown, Pennsylvania , on November
22, 23, and 30 and December 1, 1954, before the duly designated Trial Examiner,
at which all parties were represented by counsel and were afforded full opportunity
to be heard, to examine and cross -examine witnesses , to introduce evidence bearing
on the issues , to present oral argument , and file briefs and proposed findings of fact
and conclusions of law. Respondents ' preliminary motions to dismiss the complaint
for lack of jurisdiction were denied , their motions at the close of General Counsel's
case to dismiss the complaint on the merits were denied; and their similar motions
at the close of the case , on which decision was reserved , are disposed of by the find-
ings and conclusions in this report . All parties presented oral argument and the
Respondents have filed briefs with the Trial Examiner . After the hearing closed, all
parties filed with the Trial Examiner a written stipulation correcting inaccuracies in
the record ; the stipulation is hereby filed in the record as Trial Examiner 's Exhibit
H. E. STOUDT & SON, INC. 851
No. 1, and the record is hereby corrected in accordance therewith. On March 30,
1954, the parties filed a stipulation setting forth additional jurisdictional data relat-
ing to Respondent Stoudt which the Trial Examiner has filed in the record as Trial
Examiner's Exhibit No. 2.
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 STOUDT AND WEISKER
Respondent Stoudt is a Pennsylvania corporation which maintains its principal
office and place of business in Allentown, Pennsylvania, where it is engaged as a gen-
eral contractor in the construction of commercial projects, in the course of which
it installs heavy machinery. During the year 1953, Stoudt performed work and
services in construction of buildings for Bethlehem Steel Company valued at ap-
proximately $155,000, and in 1954 performed similar work and services for said
company valued at approximately $234,000. In 1954 it performed installation and
construction work and services for General Electric Company valued at approxi-
mately $195,000 at the Allentown, Pennsylvania, plant of said company. This is
the project involved in this case and is referred to herein as the "GE project." Beth-
lehem Steel Company is a Pennsylvania corporation engaged in production and sale
of finished and semifinished iron and steel, building and repair of ships, and fabri-
cation and erection of structural steel; it operates iron and steel producing plants in
the States of Pennsylvania, Delaware, Maryland, New York, and California; in
each of the years 1953 and 1954, it produced finished products in Pennsylvania valued
in excess of $1,000,000, which were sold and shipped directly to points outside that
State. Stoudt admits, and I find from the above facts, that it is engaged in commerce
within the meaning of the Act. Jonesboro Grain Drying Cooperative, 110 NLRB
481. In making these findings, I have adopted Stoudt's proposed findings of fact
Nos. 1, 2, and 3, and rejected its first proposed conclusion of law.
Respondent Weisker is a Connecticut corporation which maintains its principal
office and place of business in Fairfield, Connecticut, where it is engaged in the busi-
ness of commercial construction, in the course of which it installs heavy machinery.
In the year 1953, Weisker performed work and services for other firms engaged in
interstate commerce, including Westinghouse Corporation, valued at approximately
$300,000. In 1954, it rendered services to General Electric Company valued at
approximately $70,000, and rendered work and services in States other than Pennsyl-
vania valued in excess of $75,000. In the course of its business in 1954 up to the
date of the hearing, Weisker performed total work and services valued at approxi-
mately $260,000, of which approximately $115,000 in value was performed in States
other than Connecticut. Weisker admits, and I find on the basis of the amount of
direct outflow of work and services in 1954 stated above, that Weisker is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the
Act, which admits to membership employees of Stoudt and Weisker. Robert L.
Schwartz is the business agent of the Union.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The basic issues in the case are (1) whether or not 12 ironworkers named in the
complaint (hereafter called the Seng group) were hired by Stoudt and Weisker on
August 3 and 4, 1954, for work to commence August 6 on the GE project de-
scribed below, and were denied the right to work on that job by those Respondents
on August 6 and 7, 1954, because they had not been hired through, nor received
prior clearance or approval from Schwartz, as business agent of the Union, in
violation of Section 8 (a) (3), (2), and (1) of the Act; (2) whether or not the
Union and Schwartz on August 6 caused or attempted to cause Stoudt and Weisker
to deny these individuals the right to work for the reasons aforesaid, in violation
.of Section 8 (b) (2) and 8 (b) (1) (A) of the Act; and (3) whether such conduct
was pursuant to an arrangement or agreement between Weisker, Stoudt, and the
Union to the effect that all ironworkers required by Stoudt and Weisker on said
project must be members of, and hired through and with the approval of, the
Union and Schwartz in violation of all of the above provisions of the Act.
387644-56-vol. 114-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The relations between Stoudt and Weisker on the GE project
On June 23, 1954, Stoudt executed a prime contract with General Electric Com-
pany under which Stoudt agreed to furnish all labor, materials, and equipment for
the moving and rearrangement of equipment and machinery in the Allentown,
Pennsylvania, plant of that concern, in order to redistribute its operations as re-
quired by a new addition to that plant. The contract price was actual cost of the
work plus a 10-percent fee. Stoudt agreed to complete the work on or before
August 21, 1954; performance by that date was of the essence of the contract, be-
cause General Electric Company wanted the work done within its vacation shut-
down period, which began at 4:30 p. m., Friday, August 6, 1954, and ended Satur-
day, August 21, 1954. To meet this schedule, Stoudt proposed in its bid of May
18, 1954, to have its own employees i and those of all subcontractors work three
shifts daily. Stoudt had also proposed to sublet part of the moving and rigging
work to Weisker, and after it signed the prime contract, Stoudt executed a cost-
plus subcontract with Weisker under date of June 28, 1954, whereby Weisker agreed
to perform the moving, rigging, and resetting of equipment at certain hourly rates
for steelworkers, "pushers," 2 and supervisory personnel, and use of moving equip-
ment. The pertinent labor provisions of these contracts will be discussed below.
In the same period, Stoudt made similar subcontracts with other firms for the
plumbing, electrical, and sheet-metal work. These findings are based on credited
testimony of Stoudt and documentary evidence, and incorporate the substance of
Stoudt's proposed findings of facts Nos. 4, 6, 7, 8, 9, 10, and 12.
C. The alleged illegal hiring arrangement 3
In its original bid to General Electric Company, Stoudt quoted as part of its
labor costs the union wage rates prevailing in the Allentown area for various crafts-
men, including ironworkers and "pushers," to be used by its proposed subcontrac-
tors, with the proviso that "inasmuch as we are in the midst of wage negotiations
because of the various wage contracts expiring, these rates are based on the present
wages and any increases arrived at between the various contractors and subcon-
tractors and the unions by collective bargaining will have to be adjusted at a later
date." Stoudt's bid was attached to, and incorporated by, reference in the prime
contract. The Weisker subcontract contained the same basic wage rates for iron-
workers and pushers as the prime contract, with a proviso for later adjustment
thereof similar to that quoted above.
General Electric Company insisted in its negotiations with Stoudt that all the
work must be performed with union labor wherever possible. Paragraph numbered
6 (c) of the prime contract required Stoudt to "observe, and require [Stoudt's] em-
ployees and subcontractors, material men and their employees to comply with, all
regulations and rules in effect at the site of the WORK relating to union labor. . .
In consequence, during negotiation of the subcontract with Weisker, Stoudt
requested, and Weisker procured, the prevailing union wage rates for ironworkers
and pushers from Respondent Union, and submitted them to Stoudt, who incorpo-
rated them in the subcontract. That document, which was prepared by Stoudt,
provided that "all work is to be performed 100% AFL union," and that the gen-
eral conditions stated by General Electric Company in the prime contract applying
to methods of operation and payment were part of the subcontract. That docu-
ment also provided that, since shift work would be required, Weisker "will be paid
on the basis of the union shift conditions whereby the men on the second and third
shifts will work seven hours and be paid eight hours of straight time for which
you will be paid on the basis of the above rates [referring to the union rates for steel-
workers and pushers quoted in both the prime and subcontracts]." As Robert
Stoudt testified, there was "no thought that the men [employed on the project]
would be other than union from the very beginning." All parties admit, and
the record shows, that every ironworker employed in the performance of the Weisker
subcontract was a journeyman ironworker and member of the Union.4 It is clear,
i Stoudt hired and used its own carpenters and laborers on the job.
2 The parties stipulated that the word "Steelworkers" appearing in the record and
exhibits means "ironworkers " A "pusher" is another .name for a foreman
a As Robert P Stoudt, president of Respondent Stoudt, was the main representative
and actor for that Respondent in the events described herein, the term "Stoudt" will be
used herein to indicate the firm or its president, or both, as the context may require
4 The above findings are based on uncontradicted and credited admissions of Robert P.
Stoudt, Foster W. Piper, Schwartz, and documentary evidence.
H. E. STOUDT & SON, INC. 853
and I find from the above facts, that by June 28, 1954, before Stoudt and Weisker
started work on the project, these Respondents had agreed upon a closed-shop ar-
rangement under which all of the ironworkers to be used by Weisker on the job
would be members of the Union. The complaint does not allege, nor does General
Counsel claim, that this preliminary arrangement was per se a violation of the Act,
but it was a controlling factor in the subsequent dealings of Stoudt and Weisker
with the Union and Schwartz before the start of the project, which will now be
considered.
Shortly after Stoudt executed the prime contract, he received demands from
various building trades unions in Allentown for exclusive employment of their respec-
tive members on various phases of the work. Among others, the Millwrights' local
representative, one Schweyer, claimed the moving of machinery and erection of
conveyors for millwrights, threatening Stoudt with a stoppage of the whole job if
they were not used for that work; and a few days later (about July 15 or 16, 1954)
Schwartz visited Stoudt, claiming the same work for ironworkers in his union.
Stoudt told him that he had already received the same claim from the Millwrights,
and explained that, since the whole job must be completed within 2 weeks, it
could not stand any work stoppages due to jurisdictional disputes "or anything else";
if any occurred, Stoudt could not go through with the project. He explained to
Schwartz the nature of the equipment to be moved and said that Weisker was the
subcontractor for the moving and rigging of machinery, who would employ all
millwrights and ironworkers needed for that work. Schwartz warned Stoudt there
would be "trouble-makers" trying to get work on the job. Stoudt told him he had
heard of some "dissatisfaction" in the Union, and that Schwartz was having "trouble
in the local," and stated he would not like to have any troublemakers on the job 5
Schwartz assured him that if he sent any ironworkers to the job, they would be
qualified men and would be instructed not to cause any trouble. Schwartz said he
did not know the Weisker firm, which was an out-of-town concern, or how to get
in touch with it, and gave Stoudt his business card, asking Stoudt to send it to
Weisker. Stoudt said he would send it to Foster W. Piper, president of Weisker,
and that Piper would get in touch with Schwartz when he came to Allentown. On
July 16, 1954, Robert Stoudt sent Weisker a letter requesting certain information
relating to Weisker's impending work on the project. Stoudt enclosed Schwartz'
business card in the letter, and stated in the last paragraph thereof:
We have also been informed that there are a number of iron workers in
this area, who are known to be quite radical, and who have stated that they
intend to get on this job. To eliminate any possibility of these men contacting
you direct and being hired and then agitating trouble, we would suggest that
you obtain all local men through the local business agent, who is Robert L.
Schwartz. I am enclosing his card and he has assured us that he will give
you good men and ones that will not be trouble makers.
Piper received the letter in due course and replied by letter of July 27 containing a
breakdown of the local union wage rates for ironworkers, millwrights, and foremen
in each craft. These findings are based on credited testimony of Stoudt, Schwartz,
and Piper, and documentary evidence and incorporate the substance of Stoudt's
proposed findings of fact No. 13.
In order to iron out beforehand the jurisdictional disputes which had already
arisen and any other problems, and forestall any possible work stoppages on the
job, Stoudt called a meeting on July 21, 1954, at the Lehigh Valley Club in Allen-
town, Pennsylvania, of representatives of all parties concerned in the project.e
Stoudt presided and told all present of the impending jurisdictional disputes and the
Millwrights' threat of a work stoppage, that the job had to be completed in a 2-week
period and could not stand any labor trouble or work stoppages, and that the
subcontractors and union business agents must settle all disputes beforehand and
6In past years, Stoudt had had "lots of trouble" whenever it employed members of the
Union, and Robert Stoudt, first as secretary and lately president of the firm, had often
been called upon to intervene in jurisdictional disputes between the Union and other
unions which had confronted its subcontractors on other jobs. Stoudt had also known
for several years of internal dissension within the Union
O The meeting was attended by representatives of General Electric Company ; Robert
Stoudt, Elmer Martin, his general superintendent, and Frank Eby, his general superin-
tendent on the GE project, for Respondent Stoudt; Piper and General Foreman Raymond
Sinhai t, for Weisker , representatives of the plumbing, roofing, and electiical contractors ,
Schwartz foi Respondent Union , and the business agents of the AFL electiical, plumbers,
and steamfitters and sheet metalworkersand millwrights unions.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree that there would be no work stoppages , otherwise they might as well forget
the whole job. During the hour-and-a-half meeting, all pending disputes were
settled between the subcontractors and the unions. In discussion of the millwright-
ironworker dispute, Piper told Schwartz and Schweyer, the Millwrights' agents, that
he would need about 45 men to carry out his work, and did not care whether they
were millwrights or ironworkers, that it was up to the two unions to decide among
themselves how many of each craft they would send to the job; after some argument
between Schwartz and Schweyer, they settled the matter by accepting the suggestion
of Piper that each union supply 50 percent of the employees. Stoudt took no part
in the actual settlement of these disputes. Toward the end of the meeting, however,
he told all present that the subcontractors and business agents should first try to
adjust any disputes among themselves, and if they were unable to do so, they should
call on him, and he would use his "good offices" to try to get the parties together
and settle the problems. He also asked each subcontractor representative during the
meeting how much labor he would require to carry out his subcontract; each in turn
gave him the approximate number of men needed, and also gave that data to the
business agent of the union representing the craft he would use. These findings
are based on credited and mutually corroborative testimony of Stoudt, Schwartz,
Piper, Martin, Sinhart, John R. Detthof, Harry B. Parks, and Joseph J. Hudoch.
I adopt Stoudt's proposed findings of facts Nos. 14, 15, 16, 17, and 18.
After the millwright-ironworker dispute was settled, Piper told Schwartz his main
work on the GE project would start Friday, August 6, 1954, at 4:30 p. in., and would
operate on 3 shifts, that he would need 18 or 20 ironworkers, and wanted union men.
He asked Schwartz if they were available and if he could supply them. Schwartz
replied that he could supply any amount of men required, as many members of the
Union were out of work, and for that reason he asked Piper not to bring in any
"outside" ironworkers, but to give all the work to local ironworkers.? Piper agreed
to this, and said he would get in touch with Schwartz later and let him know how
many men he would need for each shift. Piper then told Schwartz he would need
two ironworkers for preliminary work starting Friday, July 23, 1954. Piper turned
to Sinhart, who suggested John O'Donnell, and Piper then asked Schwartz to send
O'Donnell and a welder to the job. Schwartz asked if he wanted O'Donnell the
father, or his son, and Sinhart said "we want old John O'Donnell," meaning John J.
O'Donnell, Sr., who had worked for Sinhart and Weisker before. Piper said he in-
tended to use O'Donnell as foreman on the first (day) shift on the main job when
it started. Schwartz agreed, and sent O'Donnell, Sr., and Welder Arthur Horvath
to the job on July 23, 1954. Piper had a similar conversation with the millwrights'
business agent about his millwright requirements, and arranged to have that agent
send two union millwrights to the job on July 23, 1954. O'Donnell, Horvath, and
the two millwrights reported on that date to Weisker's general foreman, Sinhart, at
the project, and were at once put to work by him. Horvath assumed the duties of
temporary union steward for ironworkers on the job until he was replaced by a stew-
ard appointed by Schwartz. These findings are based on credited and mutually cor-
roborative testimony of Piper, Sinhart, Schwartz, John J. O'Donnell, Sr., and Horvath.
D. The efforts of Paul C. Seng, et als., to secure work on the GE project
Members of the Union heard early in July about the GE project and the amount
of desirable overtime work involved, and many of them requested Schwartz to send
them to the job. He told them they would have to wait until the job material-
ized, and that he would consider them for the job if they were then available. Paul
C. Seng, president of the Union, asked Schwartz at a union meeting on July 14, 1954,
7 Schwartz testified that Weisker was party to an "international agreement" under
which it had the right to bring in 50 percent of the ironworkers from outside the territory
coveted by Local 36. The "agreement" was not further identified nor produced at the
hearing The only document in evidence which appears relevant is the Union's constitu-
tion (Union's Exhibit No. U-1), article XVII1-A, of which contains the "General Working
Rules" of the International organization and its locals. Section 26 of that article (Union's
Exhibit No. U-1) provides that on all jobs in the jurisdiction of the local union "not less
than fifty per cent of the members of the local union must be at all times employed unless
the required number of qualified members are not available. This permits employers to
employ fifty per cent of the members from other local unions of our International Associa-
tion on each job " From Schwartz's uncontradicted testimony, this provision, and ad-
missions of Weisker in argument, it is inferrable, and I find, that Weisker had either
signed a broad agreement with the International which incorporated the above provisions,
or was otherwise cognizant of and followed the above working rule.
H. E. STOUDT & SON, INC. 855
to "count" him in on the job. Schwartz replied, "I am the business agent, I'll put
the men on the job, and we will see when the time comes." Seng,made the same
request of Schwartz at the union hall almost daily thereafter through August 4, 1954,
and received the same answer; on the morning of latter date, while Seng was at the
union hall looking for work, Schwartz selected and sent six union members to the
GE project to work for another contractor installing conveyors, but did not select
Seng. For some time past, Seng and Schwartz had been unfriendly toward each
other, which was due largely to their disagreement over Schwartz' operations as
business agent, particularly in assignment of men to jobs: Seng contended that
Schwartz practiced favoritism in sending certain members to desirable jobs while
refusing such assignments to Seng and others, to such an extent that the latter had
been compelled to go out and solicit their own jobs. Thus, when Seng failed to ob-
tain any assurance from Schwartz of an assignment to the GE job, he personally
made efforts to secure employment there for himself and other union members.
On Wednesday, August 4, 1954, about 1 p. m., Seng visited the GE project with
his brother, John Seng, and Edward Morrisey, both members of the Union. He
asked Steward Horvath for the foreman and Horvath pointed out Sinhart. Seng
introduced himself to Sinhart as president of the local Union, told him that he
(Seng) and Business Agent Schwartz were in a "fight" and did not see "eye to eye"
about matters within the Union, and that he was convinced Schwartz would not
send him to this job. Seng said he needed a job and asked Sinhart to hire him as
foreman, saying that if Sinhart had "nerve enough" to hire him, he had the right
to seek his own work,8 and would promise Sinhart good men. Sinhart said he under-
stood that Seng was a heavy drinker and emphasized that he wanted no drinking
on this job. Seng promised him there would be none. Sinhart then told Seng to
report for work on the starting shift at 4 p. m. Friday, August 6, 1954, that he would
be the "gang pusher" on that shift and would take orders from Sinhart, who would
be the general foreman of the shift. He said Seng would need six ironworkers for
the shift, and told him to "hire your own gang," and "get me a good gang." Seng
said he had two good men with him, referring to John Seng and Morrisey, but that
one (John) was only an apprentice. Sinhart replied that he did not "go and settle
up what's in your union; if he's a good man, put him on." Seng then told his brother
and Morrisey that he was hired and had been given authority to hire his own shift,
and that they would be on his shift and should report with him for work on Friday.
John Seng reminded Paul he was only an apprentice, and Paul said he was hired
"as of now," but if some trouble developed between Paul and Schwartz, John might
have to be dropped. Seng contacted Joseph Tibensky, Michael F. Foley, Patrick
T. Seckler,9 and Lester Alexander, all union members, that same afternoon, told
each he "had the job" and was hiring them on his shift, and directed them to report
at 4 p. m. Friday. With John Seng and Morrisey, these men completed his shift.
The above findings are based on credited and mutually corroborative testimony of
Paul Seng, John Seng, Bernard Tognoli, Foley, Morrisey, and Horvath, which is
corroborated in substantial part by that of Schwartz and Sinhart. I do not credit
Sinhart's general denial of any discussion with Seng on August 4, nor his and Piper's
denial of his authority to hire men on the job, nor his testimony that, when Seng
and others approached him repeatedly for jobs, he told them that Piper would do
all the hiring "through the hall" on Friday, August 6, nor that he suggested to Seng
that Seng should "shape up there on a Friday," and should get in touch with Schwartz.
Sinhart was a reluctant and rather evasive witness, and his general demeanor on
the stand convinces me that he was not telling the whole story as to his dealings
with Seng and other applicants for work, or his exact status and activities on the job.
Moreover, he told Schwartz on August 6, as will appear below, that he had asked
Seng, Foley, and Robert Burns to "line up some men, to look them over." Finally,
I am convinced, for reasons discussed more fully below, that Sinhart was a super-
visory official of Weisker on the job who had apparent authority to hire men on
the 4th.
Sometime on the afternoon of the 4th, Seng told Schwartz that Sinhart had told
him he could go to work "pushing the second shift" if it was all right with Schwartz.
Schwartz replied that he would send Seng out on the second shift if he was requested
8I find from credited testimony of Song, Bernard Tognoli, O'Donnell, Schwartz, and
admissions of the Union that, while the business agent is the official representative of
the,Union in dealing with employers and the general public, and one of his main duties is
to secure jobs for his members by maintaining contact with employers, the Union has
always recognized the right of its members to secure their own jobs without relying on
the efforts of the business agent.
'These are the correct names of Foley and Seckler, as stated in the record.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Weisker, but advised Seng to "wait until the time comes." Schwartz was doubtful
about Seng's statements , so went at once to the job site, told Sinhart of his talk with
Seng, and asked Sinhart if he knew Seng, and if any men had been hired for the job.
Sinhart denied any knowledge of Seng, and said that Piper had not yet hired any
men. Schwartz asked Sinhart how many ironworkers would be needed for each
shift starting Friday, and Sinhart said he did not know, but that Schwartz would be
advised later. These findings are based on credited and uncontradicted testimony of
Schwartz and Sinhart; Schwartz was not sure of the exact time of day when Seng
talked to him, but I am convinced that it must have been the afternoon of the 4th,
after Seng had talked to Sinhart, as found above.
John J. O'Donnell, Sr., and Robert Burns applied for work on the GE job by
sending a telegram shortly before July 21, 1954, to Piper at Weisker's Connecticut
headquarters. They had both worked under Sinhart on previous jobs, and O'Donnell
also knew Piper previously. Piper received the telegram before the Lehigh Valley
meeting described above, and discussed it with Sinhart. Piper hired O'Donnell at
the suggestion of Sinhart at the meeting by requesting Schwartz to send him to the
job, as found above. Following the meeting, Schwartz telephoned O'Donnell, told
him that Sinhart had asked for him, directed him to report to Sinhart at the job
site on July 23, 1954, and said he would be a foreman and get a foreman's pay when
the main job started. O'Donnell worked from July 23, 1954, to the end of the
project; from and after August 7, he was the union foreman or "gang pusher" on
the day shift. Sometime before August 6, Sinhart told O'Donnell he could select
the men for his shift. Sometime after July 23, Robert Burns talked to Sinhart at
the job site. The latter told him it would be a 3-shift job, and when it "broke," he
would tell O'Donnell to let Burns know. Burns was not hired by Sinhart at that
time. On August 3, Sinhart told O'Donnell at the project that Burns would be the
union foreman on-the third (midnight) shift and would have the privilege of hiring
the men for that shift. Sinhart told O'Donnell to advise Burns accordingly, and
ask him to bring two ironworkers and a welder with him at the start of the job.io
O'Donnell at once called Burns and reported Sinhart's statements. That night Burns
secured Frank Whipple and on Thursday morning, August 5, procured James
Tognoli to work on his shift. Later that day, Burns reported to Sinhart at the job
site that he had secured two good ironworkers, but no welder. Sinhart said he
wanted a good welder and told Burns to report for work at I1 p. in. Friday night.
Burns hired a welder (whose name does not appear in the record) outside the union
hall Friday morning. He reported at the job that afternoon under circumstances
which will be discussed below. The above findings are based on credited and
mutually corroborative testimony of O'Donnell, Burns, Piper, Sinhart, and Schwartz;
testimony of Piper and Sinhart in conflict therewith is not credited for reasons
stated above.
On the morning of August 4, 1954, Michael F. Foley, a member of the Union,
applied for work at the job site, where Steward Horvath told him Sinhart was the
superintendent and O'Donnell the foreman, and introduced Foley to Sinhart. Foley
stated his qualifications, and asked Sinhart if he needed any foremen. Sinhart replied
he already had his foremen picked , naming Seng, O'Donnell, and Burns, and asked
Foley what he thought of them. Foley said he had worked a long time with them,
and that Sinhardt could not have picked three better men. Foley then asked Sinhart
to consider him for a job as a journeyman ironworker. Sinhart said he would keep
him in mind and told Horvath to remind him to mention Foley's name when he
called in to the union hall the names of employees to be used on the "big push."
That afternoon Foley was engaged by Seng for work on the middle shift, as found
above. These findings are based on credited and mutually corroborative testimony
of Foley and Horvath. Sinhart did not deny their testimony as it involved him, ex-
cept in general terms, and I do not credit his denials.
On the evening of August 4, Seng called union members James P. Dewar and
Edward Tognoli, told them there was a possibility of work for them on the GE
job, and asked them to meet him on the 5th in Allentown. He also told Dewar to
contact two other good ironworkers for the job.
On the morning of August 5, Joseph Tibensky met Leonard Repash at the union
hall and told him he had been hired by Seng. Repash at once drove to the job site
to apply for work; Tibensky went with him. They met O'Donnell who introduced
them to Sinhart, telling Sinhart they were two of the men about whom he had been
speaking to Sinhart. When Sinhart heard Tibensky's name, he said to him, "You're
going to report in Seng's gang Friday afternoon." He told Repash that he would
10 In his talk with Seng on the 4th, Sinhart told Seng that Burns would be foreman
on the midnight shift and would hire his own men.
H. E. STOUDT & SON, INC. 857
be on the day shift under O'Donnell and that he should report for work 8 a. in.
Saturday, August 7. These findings are based on credited testimony of Tibensky
and Repash, which was not specifically denied by Sinhart.
The same morning, Seng had a talk with Sinhart and O'Donnell at the General
Electric wire mill," during which Seng gave Sinhart the names of Walter Broadbent,
James P. Dewar, Edward Tognoli, and William Lynn, all union members, recom-
mending them for work on the job. Sinhart asked O'Donnell if they were good men,
and O'Donnell replied, "the best." Sinhart then said, "If they are good men, we'll
take them, bring them out; we need only 3 more men now and we'll have the job
filled." In the same conversation, Seng told O'Donnell in the presence of Sinhart that
he (Seng) was taking the second shift as foreman, and named the six men who would
work under him. Seng left the mill, met the four men named above, told them he
had recommended them to O'Donnell, that they were hired, and that they need not go
out to the job site then, but should report there at 8 a. in. Saturday, August 7. On
the 4th or 5th, Seng told Steward Horvath about his employment as foreman and
his efforts to get ironworkers for his and O'Donnell's shifts. These findings are
based on credited and mutually corroborative testimony of Seng, Horvath, and
O'Donnell. I do not credit Sinhart's denials of hiring of Broadbent , et als., nor his
general denials of the above testimony.
E. The events of August 6, 1954
Schwartz went to the union hall about 7:30 a. in. on August 6, 1954. He told
union members who inquired about the GE job that he was waiting,for a call from
Weisker telling him the number of men he should send to the job. About 8 a. in.
Schwartz was told by several members that they had heard the ironworkers had
already been hired, that Robert Burns had solicited members for the job in a nearby
saloon the day before telling them he would put them to work, and that Schwartz
"did not know what he was doing." Schwartz was disturbed by this information,
as he considered such hiring at variance with his talk with Piper at the Lehigh Valley
Club, from which he understood that he would supply the ironworkers for Weisker.
He told Office Manager Bernard Tognoli that there was going to be trouble on the
job, and that he was going over there to see if he could straighten it out. He went to
the job Site at once to look for O'Donnell or Horvath, and finally located both at
the wire mill. O'Donnell showed Schwartz a list of 18 union ironworkers, 12 of
whom are named in the complaint, and said these were the men to go to work on
the job if it was all right with him. Schwartz asked by what authority O'Donnell
had hired the men. O'Donnell replied that Seng had given him the list, and that was
all he knew about it Schwartz asked Horvath "what goes on?" Horvath replied that
he had nothing to do with it, but that Seng had called in the names on the list and
told Horvath they were going to work; Horvath did not say who had hired them.
Schwartz went to Stoudt's office between 9:30 and 10 a. in. in an effort to find out
whether the men on this list were in place of, or in addition to, those he had been
asked to supply. These findings are based on credited and mutually corroborative
testimony of Schwartz and Horvath.
Prior to Schwartz' talk with O'Donnell, the latter had called the union hall, told
Office Manager Tognoli that he was the foreman on the day shift, and asked that
the following union members be sent to the job Saturday morning at 8 a. m.: John
O'Donnell, Jr., William Lynn, Walter Broadbent, James P. Dewar, Edward Tognoli,
and Leonard Repash. Tognoli told O'Donnell that Schwartz was on his way to the
job site and would talk to him there. A little later, Paul C. Seng called Tognoli,
said he was hired as foreman on the second shift, and asked Tognoli to list himself,
Tibensky, Morrisey, Alexander, Foley, Seckler, and John Seng as working on that
shift. Later that morning, Robert Burns came in and told Tognoli he would be
foreman on the night shift and was authorized to hire his own men, and asked
Tognoli to send out Frank Whipple, James Tognoli, and Leo McAndrew for that
shift. Sometime before lunch, Tognoli told Schwartz on the telephone that Seng,'
O'Donnell, and Bums had been in touch with him and requested particular men
for the job, and he gave Schwartz the names of the men each had mentioned.
Schwartz told Tognoli not to send anyone out to the job, that he would take care
of that , and would see Tognoli at noontime . These findings are based on credited
and mutually corroborative testimony of Bernard Tognoli, O'Donnell, and Paul
Seng, which is corroborated in part by that of Schwartz. -
n The wire mill is a separate General Electric building which Weisker used for storage,
located about 2 miles from the job site here involved.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Schwartz arrived at Stoudt's office about 9:30 a. m., he was greatly agitated.
He told Stoudt there was "trouble on the GE job," that he had to get in touch
with Piper, and came to Stoudt to get his telephone number. Stoudt asked what
the trouble was, and Schwartz told Stoudt about the list of men he had been shown
on the job, complaining that men were being put to work, including one appren-
tice, different from the list of men he was preparing to send out, and there was a
"general mix-up" or "misunderstanding" about the hiring. He asked Stoudt "What's
up?" stating that he had the impression from his talk with Piper that he (Schwartz)
had been delegated to furnish ironworkers for the job, and suddenly he was given
this list, indicating that all the jobs were filled, and he had been told that Seng
and several others had hired the men. He complained that he had not been con-
sulted about their hiring and that he did not think they were "in line to go to work"
because other union members had been unemployed longer. He told Stoudt that
he was prepared to send out a list of union men who had reported at the union hall
for work and who were qualified. Schwartz also reminded Stoudt of the 50-50
agreement reached at the Lehigh Valley Club between the ironworkers and mill-
wrights, stating that since that meeting he had not advised the membership of the
Union about that agreement,12 and "the only hope I have of keeping it straight,
the way you wanted it, is to talk to these men before they go to work," and that
under the circumstances, he could not "live up to" that agreement, and that "all
deals are off." He again asked Stoudt, "What's the deal, is somebody else going
to put the men to work, or is it me?" Stoudt agreed that Schwartz was the business
agent, and said it was up to him to furnish the ironworkers, and that they had
to be qualified men, but that it was Weisker's job to hire them, and he would call
Piper. These findings are based on credited testimony of Stoudt and Schwartz. In
view of my findings herein that Stoudt is an employer within the meaning of the
Act and participated actively in Weisker's personnel problems on the job, I do
not credit other testimony of Stoudt relating self-serving statements to Schwartz in-
dicating the contrary.
While Schwartz was in his office, Stoudt tried unsuccessfully to contact Piper by
telephone in Connecticut, but after Schwartz left for the GE wire mill, Stoudt
reached Piper about 10 a. m. He told Piper of Schwartz' visit, that there was labor
trouble on the job over some men who were supposed to have been hired, that the
job was to start at 4 p. m., and Stoudt feared trouble would start and "upset" the
job. Piper asked for Sinhart, but Stoudt said he was not in his office. Piper then
said he had planned to come to Allentown later that day (he had intended to arrive
about 3:30 or 3:45 p. m.), but would leave at once so as to get there earlier. He
told Stoudt the number of ironworkers he would need for all shifts, requested him
to advise Schwartz accordingly, and to tell Sinhart that he (Piper) would arrive
on the job about 2 or 2:30 p. in. Stoudt tried to locate Sinhart by telephone, and'
was advised to call the wire mill. He and Eby, his project superintendent, went
to the wire mill around 11 a. in. where they met Schwartz. Stoudt told Schwartz
that he had spoken to Piper, that "it was as originally intended," that Schwartz would
put the ironworkers to work, and that Piper still depended on Schwartz to get men
for him. Stoudt told Schwartz the number of ironworkers Piper needed for the
job. The above findings are based on credited testimony of Stoudt, Piper, Eby, and
Schwartz. The text of the Stoudt-Schwartz conversation at the wire mill is based
on credited testimony of Schwartz; Stoudt does not deny the talk, merely could
not recall telling Schwartz the number of men needed. I do not credit Stoudt's denial
of any discussion with Piper about hiring of men for the job, nor Piper's testimony
that he told Stoudt not to do anything, and that he would take care of everything
when he arrived on the job. Stoudt admitted he was greatly disturbed, after hear-
ing Schwartz' complaint, about the possibility of labor trouble, picketing, and a
stoppage of the job.
Harry B. Parks, business agent of the electrical workers' union , testified credibly,
and I find, that Stoudt told him at the GE plant that morning that there was trouble
on the job among the ironworkers, that a gang of ironworkers had come to "hire out"
to the subcontractor, and he hoped it would not delay the job. I cannot believe that,
while in this frame of mind a few hours before the job was scheduled to start, Stoudt
would not have told Piper the whole story of his talk with Schwartz, and that they
would not have made some immediate arrangement to satisfy Schwartz and prevent
a labor stoppage on the job. It is much more likely under the circumstances that
Piper requested Stoudt to tell Schwartz he should supply the men and how many
were needed , as indicated by Schwartz' testimony , and I am convinced and find that
32 Paul Seng also testified, and I find, that Seliwartz never reported the agreements at
that meeting to the Union's membership before the GE job began.
H. E. STOUDT & SON, INC. 859
Piper gave such instructions to Stoudt. This finding is further supported by the facts
that Piper had on August 3 called the union hall to request that 18 ironworkers be
sent to the job on Friday, and had confirmed that request by letter mailed to the
Union the following day. Having already requested a certain number of men, it
would be natural for Piper to repeat the request on the 6th through Stoudt, as soon
as he learned of Schwartz' complaint about the hiring of ironworkers without con-
sultation with him.
Stoudt, Eby, and Schwartz drove to the GE plant shortly after 11 a. in. to locate
Sinhart and find out how the men on O'Donnell's list had been hired. They met
O'Donnell, and Schwartz asked him where Sinhart was, but O'Donnell did not know.
Stoudt told O'Donnell the general foreman had exceeded his authority in hiring men,
and that all ironworkers would have to come through the union hall. O'Donnell said
he had nothing to do with the hiring, and Schwartz supported his statement. O'Donnell
asked Schwartz if he would put his son, John, Jr., to work on the job. Schwartz
said he would see that he went to work. Shortly after, Stoudt and Schwartz met Sin-
hart, and Stoudt told him substantially what he had told O'Donnell, and that he
had talked to Piper, who was on his way to the job to straighten matters out. Sin-
hart then came over to O'Donnell and told him it was "all off," that the men would
have to come through the union hall, and told O'Donnell to notify the men on his
list not to report for work. At the request of O'Donnell, who could not hear well
on the telephone, Steward Horvath called Paul C. Seng sometime between 11 a. in.
and noon, telling him that "all hell broke loose," that Schwartz had been at the
job, that Sinhart asked him to tell Seng that his men should not report for work, and
that no one would go to work on the job unless he came "through the hall." O'Don-
nell sent the same message to Robert Burns. These findings are based in the main
on credited testimony of O'Donnell, Seng, Stoudt, Horvath, and as to the move-
ments of Stoudt, Eby, and Schwartz, on their testimony. Testimony of Sinhart in
conflict therewith is not credited.
In the meantime, Schwartz returned about noon to the union hall where he selected
15 union ironworkers to go to the job; most of those selected had been in the hall
that morning. About 12:30 p. m. Tognoli showed Schwartz the list of names he
had received from Seng, O'Donnell, and Burns. Schwartz recognized the list as the
same that O'Donnell had shown him that morning, and he told Tognoli he was send-
ing out different ironworkers of his own choice. He also told Tognoli to contact
his brothers, James and Edward, and one MacLaugherty, to complete the list; when
Tognoli could not locate the latter, he told Tognoli to contact John Orsford. Each
of the ironworkers selected by Schwartz was directed by him or Tognoli to report
to a specific shift on the GE job Friday and Saturday, and was also told about the
50-50 agreement between the Union and the Millwrights' Union. None of the iron-
workers named in the complaint, except John J. O'Donnell, Jr., were on Schwartz'
list. James and Edward Tognoli and Repash, who were on his list, had also been
chosen by Seng, O'Donnell, or Burns as found above.13 When Schwartz completed
his list about 1 p. in., he took it to the GE plant, handed it to Sinhart, told him
these were the men that Piper had asked for, and requested him to give it to Piper.
Schwartz asked Sinhart what had occurred regarding the Seng group, and Sinhart
explained that Seng and Foley had told him they were officers of the Union, and
could furnish Weisker a better grade of ironworker than Schwartz could supply from
the union hall. Schwartz asked Sinhart if he had hired the men in the Seng group.
Sinhart denied it. Schwartz asked "what's the mix-up?" and Sinhart explained that
he had only asked Seng and the others to line up some men "to look them over."
Schwartz asked if there were any men Sinhart wanted particularly, and Sinhart
said he was not requesting anybody. These findings are based on credited testimony
of Sinhart, Schwartz, Bernard Tognoli, and Repash.
About 1 p. m., Stoudt talked to Sinhart at the GE plant, asking him about the
hiring trouble. Sinhart related Seng's activity in seeking work for himself and
others. Stoudt told Sinhart about his talk with Schwartz, and, also mentioned the
hiring of an apprentice ironworker. Stoudt also said Piper was on his way down
to the job, and that Piper "had better straighten things out" so that everything would
operate smoothly. This finding is based on a composite of credited admissions of
Stoudt and Sinhart. Neither witness fixed the time of their talk, but in view of
Sinhart's talks with Stoudt and O'Donnell that morning found above, which clearly
indicate that Stoudt must have criticized and repudiated Sinhart's hiring of the
Seng group of ironworkers, and his later explanation to Schwartz of his dealings
with Seng, et al., which indicates that he was then evading any admission to Schwartz
13 None of these men are named in the complaint
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had hired them, it is inferrable that his private talk with Stoudt came just
before he talked with Schwartz, and I find accordingly.
In the meantime, following Horvath's telephone call to him, Seng contacted Burns,
and the ironworkers he and O'Donnell had chosen for their shifts, told them the
job was "all off," and that he did not think they would start work. He rounded
up several of them (Foley, Tibensky, and Seckler) and went to the union hall to
talk to Schwartz about the trouble. They missed Schwartz who had just left for
the GE plant, but Bernard Tognoli told them they were not going to work on the
job, that Schwartz was going to place his own men on the job to replace Seng and
his group, and was getting men from the hall, by telephone, and "off the streets"
for the job. Seng and his companions went to the job site to find out from Slnhart
whether they still had jobs. They arrived there about 2 or 2:30 p. in. and met all
the other ironworkers named in the complaint. Seng and Foley were delegated to
speak for the group, and sought out Sinhart. Sinhart told them that he was sorry,
that everything was "all off," that "my hands are tied," that there was a "communica-
tion" in the Fairfield office from Stoudt which "blocks my whole move, and I cannot
put you to work," that Schwartz was at the job, and was going to put all ironworkers
on the job through the union office, and that Sinhart had to put them to work through
Schwartz. These findings are based on credited and mutually corroborative testimony
of Paul Seng, Foley, Burns, Tibensky, Horvath, and John Seng. Sinhart admitted
Seng approached him and talked with him. I do not credit Sinhart's denial of
portions of the conversation as found above.
Seng and Foley then approached Stoudt in the plant, told him that they and the
group with them had been hired for the job, and related Sinhart's remarks to them.
Seng asked why Stoudt was "intruding" himself into the Union. Stoudt replied that
Schwartz had contacted him that morning and told him "it" was not in compliance
with the agreement reached at the Lehigh Valley Club, on the basis of which
Schwartz thought all ironworkers on that job would be placed through him, and that
Schwartz asked Stoudt to "get him off the hook." Foley and Seng asked again
why Stoudt was injecting himself into the hiring and firing of ironworkers, and
Stoudt said he was the general contractor on the job and was complying with the
agreement made at the Lehigh Valley Club that Schwartz and all the other business
agents should put craftsmen on the job through their respective union halls. Foley
said he had never heard of such an agreement in the Union, that its members could
solicit their own jobs, that contractors could call the Union for any specific men
they wanted, and that a foreman could hire any man he desired. In explaining the
agreement, Stoudt said that Schwartz had given Stoudt his business card, and Stoudt
sent it with a letter to Weisker in Connecticut, advising Weisker that all ironworkers
should be hired through the business agent and union hall.14 Stoudt suggested that
Seng and Foley should talk to Piper about the matter. These findings are based on
credited and mutually corroborative testimony of Seng and Foley, which was corrobo-
rated in part by that of Stoudt. Testimony of Stoudt on this point was vague and
unconvincing, and I do not credit it to the extent that it conflicts with the above
findings.
Piper arrived at the job site about 2.30 p. in , and at once asked Stoudt what
the trouble was Stoudt said some ironworkers had gathered outside the plant
claiming they had been hired for the job and were ready to go to work on Sinhart's
say-so. Stoudt asked Piper to talk to them Piper said he would talk to Sinhart
first. He then located Sinhart and asked him if he had seen Schwartz, whether
the latter had given him a list of ironworkers to work on the 4:30 p. in. and mid-
night shifts, and whether his shifts were ready to go to work Sinhart gave Piper
the list he had received from Schwartz, advising that Schwartz had stated these men
would be on the job to go to work. Piper asked Sinhart if the men on the list were
all right, and Sinhart replied that as far as he knew they were all right. Piper told
Sinhart to proceed with preparations for the job and he (Piper) would take care
of everything else.. These findings are based on credited testimony of Piper and
Sinhart.
About 4 or 4:30 p. in., Piper talked outside the plant to Seng and Foley as the
spokesmen for the Seng group. They told Piper that Sinhart had told them they
were hired to work on the job and the group was ready to go to work. Seng offered
to show Piper that he was a paid-up union member, said they had received a "pretty
lousy deal," and asked why they were not going to work. Piper said he was sorry,
that he agreed with them, they were "morally right," but that Sinhart had no author-
14 Foley testified that Stoudt said this had occurred after the meeting, but I do not
credit this testimony in view of my finding that the letter and card were sent July
16, 1954
H. E. STOUDT & SON, INC. 861
ity to hire any men for the job, and that it made no difference if they were paid-up
members of the Union, because Weisker had a communication from Stoudt stating
that the ironworkers had to "go through Robert Schwartz," and that Weisker was
having all its men on this job "sent through the union hall," and because of his
agreement with Stoudt, there was nothing he could do. He suggested that Seng and
his group go back to the union hall and be sent to the job from there, stating
Weisker was not in the habit of taking its men "off the street, or hiring them on the
job." Seng said he appreciated Piper' s explanation and the conversation ended ami-
cably. Seng and Foley reported to the group of ironworkers that the "whole thing
was off," and they dispersed. Robert Burns reported at 11 p. m. that evening,
ready to work on the midnight shift. He told Sinhart "Here I am, Ray," and
Sinhart said nothing, merely shrugged his shoulders. Burns waited around as iron-
workers reported for the midnight shift, and noticed that it was short one man.
Schwartz, who was present to make sure that the required number of ironworkers
reported, was told by the union foreman, Russell Jenkins, that he was short a
welder. Schwartz told Jenkins he would have to do without a welder until Schwartz
could locate one. He sent a welder to the job for that shift the next night. He
did not fill the vacancy with Burns because the latter was not qualified as a welder.
Only one other ironworker of Burns' selection, Frank Whipple, reported for work
with Burns, and was put to work; he had been sent out from the union hall some-
time that day. Aside from John J. O'Donnell, Jr., none of the ironworkers named in
the complaint were put to work on the job; only those selected by Schwartz as
found above actually worked. Horvath, who had been sent to the job by Schwartz
in July, was apparently on Schwartz' list, for he started work August 7 on the day
shift under O'Donnell, Sr. These findings are based on credited testimony of
Paul Seng, John Seng, Burns, Morrisey, Foley, Schwartz, Horvath, Tognoli, Repash,
and Piper; other testimony of Piper in conflict therewith is not credited.
F. Contentions of the parties and concluding findings
1. Stoudt's status as an Employer
Stoudt's main contention is that it was not in fact the employer of the Seng group
or any ironworkers used on the GE project, and that it cannot legally be held re-
sponsible for the failure or refusal of any other Respondents to put the Seng group
to work. The record shows, and General Counsel admits, that Stoudt did not
directly employ any ironworkers on the project, and that Weisker, as subcontractor,
was their direct employer. General Counsel claims, however, that Stoudt in fact
held and exercised control over Weisker's hiring of ironworkers to an extent that
makes Stoudt an employer, or agent of the employer, of these craftsmen, and thus
liable for the failure of the Seng group to work on the project. There are significant
facts and circumstances which support this contention. In the first place, Stoudt
at the very outset imposed an important and controlling limitation on Weisker's
hiring practices when it required that all work had to be performed "100% AFL
union," and that its employees would be paid on the basis of "union shift conditions";
Weisker was thus limited to hiring of union members and payment of union wages,
and precluded from using any other labor source.15 In the second place, Stoudt
implemented these requirements with particular reference to employment of iron-
workers, by the specific suggestion iii the letter of July 16, 1954, that Weisker obtain
all local ironworkers through Schwartz, as business agent of the Union, "to elim-
inate any possibility" of so-called "radical" ironworkers "contacting you direct
and being hired and then agitating trouble." Stoudt admitted that he made the
"suggestion" because he knew that "lots of trouble was brewing on the job," that
"here is a group of men where you normally have trouble," and "we are still held
responsible to see that the job is done properly." Under all the circumstances,
Stoudt's letter was a clear admonition to Weisker to avoid hiring any ironworkers
who might apply directly to Weisker, and to obtain its ironworkers only through
Schwartz. This narrowed Weisker's choice of union ironworkers to selectees of
Schwartz. Third, Stoudt's suggestions to subcontractors and union representatives
at the Lehigh Valley Club meeting that they call on him for assistance in settling
any disputes which they could not adjust among themselves, clearly indicates his
desire and intent to intervene personally in any labor disputes which might hinder 'the
>s The fact that these contract provisions may have had their origin in a somewhat
similar provision of the prime contract, or a rule of General Electric Company, or in
Stoudt's desire to insure use of qualified labor due to the short term and emergency nature
of the job, is immaterial.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
progress of the work , notwithstanding that such problems were clearly the primary re-
sponsibility of each subcontractor . Fourth, when Schwartz complained to Stoudt
on August 6 about Weisker's hiring of the Seng group, Stoudt acted promptly to
apprise Piper of the trouble , and then , in his talks with O'Donnell and Sinhart, re-
pudiated Sinhart's hiring of the Seng group , causing Sinhart to take the same
action.
It is significant that, although Schwartz testified he first tried to locate a Weisker
representative on the job that morning, and then approached Stoudt "primarily"
to get Piper 's telephone number so that he could contact him directly (which would
appear to be the natural thing to do, as Weisker was the direct employer), he
admitted that he never did talk to Piper that day by telephone or personally; and
Stoudt did not stand aloof from the controversy in order to let Schwartz and Piper
settle it; instead , he had a private conversation with Piper as a result of which he
advised Schwartz that he would still supply the men, "as originally intended," and
then repudiated Sinhart's hiring of the Seng group in talks with O'Donnell, Sinhart,
Seng, and Foley . Although Stoudt 's personal intervention may be due in part to his
concern , as prime contractor , over the possibility of a labor dispute involving picket-
ing and a work stoppage on a short -term, emergency job of a type his firm had never
handled before, it is clear that , in telling Schwartz he would still supply the men,
and then repudiating Sinhart's actions, he was acting as though he were the direct
employer. Finally, Stoudt made it clear to Seng and Foley that afternoon that he
had intervened to cancel their employment in order to comply with the hiring
arrangement aforesaid , which was clearly the act of an employer ; and Piper also
laid the rejection of the Seng group at Stoudt's door when he confirmed to Seng
and Foley Stoudt's repudiation of Sinhart 's actions and, indicated that Weisker was
required, both by its subcontract and a letter from Stoudt, to hire only through the
Union and Schwartz.
From all the above facts and circumstances, I am satisfied and find that:
(1) The association between Stoudt and Weisker had an "intimate business char-
acter" to an extent that makes Stoudt , the prime contractor, responsible for the
discharge of the Seng group after their employment by Weisker; ( 2) although
Stoudt had no specific contractual right directly to hire or discharge employees of
Weisker, it in fact specified, and thus exercised control over, the source and manner
of their hiring through the provisions of the subcontract and letter described above; 16
( 3) the actions of Stoudt on August 6, after discussion with Piper, in ( a) relaying
to Schwartz Piper's message indicating that Weisker still relied on him to supply
the men, and stating the number needed , and (b ) repudiating the hiring of the
Seng group, which were shortly confirmed and ratified by Piper, were clearly taken
as agent of Weisker, and in this respect alone Stoudt was an employer of iron-
workers, within the meaning of Section 2 (2) of the Act, which provides, in part,
that "the term `employer' includes any person acting as an agent of an employer,
directly or indirectly." 17 I therefore conclude and find that Stoudt was an em-
ployer within the meaning of the Act at all material times mentioned herein, and I
reject Stoudt 's contrary contentions , including its proposed conclusions of law
Nos. 2, 3, and 4, and do not credit testimony of Robert Stoudt, Piper , Schwartz,
and other witnesses offered in support thereof.
2. The hiring of the Seng group by Weisker
Respondents argue that there was no hiring of the Seng group in fact or in law.
It is clear and I conclude from the facts found above , which are based on a
preponderance of credible testimony, that Sinhart engaged Paul C. Seng on August 4
for employment as an ironworker foreman, to commence work on August 6, at
the same time giving him the right to choose ironworkers for his own shift, engaged
Robert Burns in like manner on August 3 as foreman, to start work August 7,
giving him like authority to choose his own men, and on August 4 gave O'Donnell
similar authority for his shift and also accepted his and Seng 's recommendations of
at least four iron workers to start work on O'Donnell 's shift on August 7. To off-
set this conclusion , Stoudt and Weisker point to uncontradicted testimony of
Ie Austtin Company, 101 NLRB 1257 , 1259. 1 consider the principle of this case ap-
plicable because the facts here show a close and "intimate business character" in the
relations between Stoudt and Weisker. Stoudt had a control by contract over Weisker's
source and manner of hiring which emphasized the community of interest of both as
employers , just as much as the prime contractor 's contractual right to remove employees
of the subcontractor in the Austin case.
17 Cf. West Texas Utilities Company, 108 NLRB 407.
H. 15. STOUDT & SON, INC. 863
Schwartz that Seng called him on the evening of August 5 to inquire if ironworkers
had been hired for the job, and Schwartz replied "no," and argue that Seng would
never had asked such a question if he had already been hired, ergo, his inquiry
required an inference that he was not yet hired . This argument has force only
if, Seng's call is considered in vacuo; but in the light of Seng 's differences with
Schwartz, his failure to secure any promise that Schwartz would send him to the
job, and his statements on this subject when he asked Sinhart for a job, it is equally
inferrable that Seng called Schwartz after he had succeeded in getting employ-
ment for himself and his friends, merely to find out if Schwartz had taken any steps
as business agent to place men on the job which might jeopardize the hiring of the
Seng group , or, in other words , to ascertain whether he and his friends had beaten
Schwartz "to the punch," so to speak, by securing employment by their own efforts
before Schwartz could send out men of his choosing.
Respondents also rely heavily on the circumstance that four men chosen by or
through Seng (Repash, James and Edward Tognoli, and John J. O'Donnell, Jr.),
reported at the union hall on August 6, were chosen by Schwartz, sent to the job
and actually worked. The argument is, that these men would not have found it
necessary to come to the hall if they had previously been hired by Weisker. This
argument has some force if the case of the 4 is considered by itself, for Schwartz'
testimony indicates that union members usually report at the union hall daily when
they are out of work and desire employment, and that he assumed this was the case
as to the 4 from their mere presence at the hall. However, there is no substantial
explanation in the record for their presence at the hall that morning; Schwartz
apparently did not question them as to their employment status. In the circum-
stances, their unexplained presence is susceptible of different inferences : they could
have been looking for work, as Schwartz assumed; or they may have dropped in
merely to kill time until they were required to report for the job; or, considering
the existing internal dissension , they may have stopped in deliberately to find out,
like Seng did the night before, what Schwartz had done, or might do, about their
procurement of employment without recourse to him. Where the fact of their
presence is so equivocal that it can support equally inferences consistent with and
negating a previous hiring, it cannot overcome other positive proof of such hiring.
Weisker also claims, on the basis of Piper's testimony, that there was no "legal"
hiring of the ironworkers sponsored by Seng because none of them ever received
badges for admittance to the job site, gave Weisker their social-security numbers,
or filled out Federal income tax withholding forms. This argument is without sub-
stance because compliance with these requirements of the plant owner and the Fed-
eral tax laws obviously related only to the formal identification and payment of
employees already hired, and was not a legal prerequisite to their hiring. On this
point, Paul Seng testified credibly, and I find, that ironworkers frequently are em-
ployed and start work on a job before they fill out any forms or papers . Further-
more, it has long been settled that a person who has been engaged to perform work
to start on a specific date, but has not yet entered upon performance of his duties,
is nevertheless an "employee" within the meaning of the Act. Cape Cod Trawling
Corporation, 23 NLRB 208, 215, 216, Phelps Dodge Corporation, 19 NLRB 547,
enfd. as mod . on other points 113 F. 2d 202 (C. A. 2), 313 U. S. 177. Even if
the members of the Seng group were only applicants for employment , they are still
considered as "employees " for purposes of determining whether they were dis-
criminatorily refused employment in violation of the Act. Utah Construction Com-
pany, 95 NLRB 196, 203. Weisker also intimates in its brief that it is inconceivable
that Sinhart could have authorized other persons, such as Seng, to hire help for him.
But this argument loses all force in the face of the credible and uncontradicted
testimony of Paul Seng and Bernard Tognoli that it is normal procedure for a union
member who has been hired as foreman to call the union hall to advise the business
agent that he is working on a job as foreman , and to ask that union members be
sent out to his job to work under him, this procedure not only assures that union
men receive work but also keeps the business agent informed at all times as to what
jobs are manned , what union members are employed, and that jobs are "properly
manned." In addition , it hardly behooves Weisker to question Sinhart's delegation
of hiring authority to newly hired union foremen, when it defends as a natural and
legal action its own delegation of authority to staff the job to Schwartz, who was
a complete stranger in the sense that he was never employed on the job by Weisker.
However, the main issue here is, whether Sinhart's status and authority on the job
was such as to make his hiring of the Seng group chargeable to Weisker. Sinhart
was one of three "general foremen" employed by Weisker on the project. He was
the only such foreman brought by Piper to the Lehigh Valley Club meeting, where
he was introduced to Schwartz and other business agents as the Weisker general
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman on the job. At that meeting, Piper arranged to have the Union send
O'Donnell, Sr, to the job, on the recommendation of Sinhart. When Schwartz sent
O'Donnell and welder Horvath to the job, they were told to report to Sinhart, who
put them to work. At that time, Sinhart told Horvath, the temporary steward, that
O'Donnell would be a union foreman when the main job started. In the weeks
before it started, ironworkers seeking employment at the plant were referred by
Horvath to Sinhart as the general foreman or "superintendent"; in the same period,
Sinhart actively directed and supervised the work of the few Weisker employees
performing preliminary work; he was the only Weisker supervisor on the job before
August 6. Starting that date, Sinhart was the general foreman on the 8 a. in. shift,
and Weisker brought two other foremen from Connecticut to supervise the other
shifts. On his shift, Sinhart gave all the orders and supervised the work; the union
foreman, O'Donnell, Sr., took orders from Sinhart like other ironworkers and had
only routine, limited supervision of their activities; O'Donnell was designated a fore-
man and paid a foreman's wages only because the Union required a union "foreman"
on each shift.ia In addition to direct supervision of employees on his shift, Sinhart
had authority effectively to recommend the hiring and discharge of employees, for
O'Donnell, Sr, was hired on his recommendation, as found above, Weisker in
oral argument admitted that Piper would have hired any persons Sinhart might
recommend,19 and Piper admitted he would discharge any employee on Sinhart's
recommendation or statement as to his lack of qualifications Furthermore, Sin-
hart was the sole representative of Weisker on the job for purposes of dealing
with the prime contractor.
At the request of Piper, Frank Eby, Stoudt's general superintendent on the proj-
ect,20 gave all orders for the day-to-day movement of machinery to Sinhart who, in
turn, had them executed by employees on his shift, and passed them on to the general
foremen of the other shifts to the extent that the work was scheduled during their
shifts. Eby often gave Sinhart moving schedules, or on-the-spot changes in them, at
any time of the day and up to midnight, and on receipt thereof Sinhart had to lay
out the work accordingly and see that it was carried out. For this reason, Sinhart
worked 16 hours a day, up to midnight, throughout the project, to coincide with
Eby's presence on the job; during the second, or 4 o'clock shift, he also shared direct
supervision of the work with Stanley, the general foreman of that shift, because it
contained the most employees and required more supervision. In addition, Sinhart
had the duty of collecting the timecards of all Weisker employees from the general
shift foremen, checking them, and turning them over to Eby for examination by
Stoudt and transmission to General Electric Company; these records were vital
because they were the basis of reimbursement of Stoudt, and in turn Weisker, for
their labor costs.
The above findings are based on credited testimony of Sinhart, Piper, Schwartz,
Horvath, and Eby, and on the basis thereof I am satisfied and find that Sinhart was
a supervisor within the meaning of the Act with at least apparent authority to hire
employees, and I conclude and find that Weisker is chargeable with his hiring of the
Seng group as found above.21 I reject as incredible the testimony of Piper and Sin-
hart that Piper alone had the right to hire employees, for it is clear from their other
testimony that Piper exercised only the general responsibility and overall control of
the work under the Weisker subcontract that a company executive would exercise.
He never hired any ironworkers for the job, except O'Donnell upon Sinhart's rec-
1s See article XVIII-A, section 13, paragraphs numbered A and B, of the Union's work-
ing rules (pp 79, 80, Union's Exhibit No. U-1).
19 Although Sinhart had no part in the selection of the ironworkers on Schwartz' list,
it is noteworthy that, before they actually started work, Piper asked Sinhart if they
were all right, and Sinhart replied in the affirmative
20 Eby was general coordinator of the work for Stoudt on the job He receioed all work
orders and moving schedules fiom General Electric Company, passed them on to the
proper subcontractors, and maintained contact with them to see that the work was
properly carried out
21 In view of this conclusion, it is immaterial whether Piper was advised by Sinhart of
his hiring of Seng and others on August 3, 4, and 5, for the extent of Sinhart's actual
and apparent supervisory authority on the job makes his actions chaigeable to Weisker
even if lie kept his superior in complete ignorance of those events Sinhart testified
credibly, and I find, that he never saw Stoudt's letter of July 16, 1954, suggesting hiring
through Schwartz, or spoke to Piper about it His lack of knowledge thereof raises the
inference that he was acting in good faith in hiring the Seng group, and negates the
argument that he would have been unlikely to hire these men on his own, in disregard of
a letter from the prime contractor to his superior.
H. E. STOUDT & SON, INC. 865
ommendation; and it is most significant that, although he and Sinhart testified that he
would do the actual hiring on August 6, the record shows that he never interviewed
or investigated the ironworkers who went to work that day, aside from a perfunctory
inquiry of Sinhart as to their fitness, although Sinhart knew nothing about them; he
accepted without question and put to work those whom Schwartz chose and sent to
the job. Piper kept in touch with the progress of the work for the most part through
daily telephone reports from Sinhart, as he visited the project only about every third
day; Weisker admits Sinhart was Piper's "eyes and ears" on the job. While Piper
discussed problems with, and gave orders to, Sinhart both on the telephone and dur-
ing visits, there is no substantial proof that he exercised any personal supervision
over personnel, or their hire or tenure of employment or even had any contact with
rank-and-file employees or applicants,22 except on August 6 as found above; the
significance of his actions that day will be discussed below.
3. The illegal hiring arrangement between Stoudt, Weisker, and the Union
and its enforcement
I have'found that Stoudt and Weisker entered into an explicit closed-shop contract
on June 28, 1954, which required Weisker to employ none but union ironworkers
on the GE project, and that Stoudt warned Weisker on July 16, 1954, to secure
its union ironworkers only through Schwartz and the Union, and to avoid hiring
any "radical" ironworkers, which meant the Seng group.23 Thus, when Stoudt and
Weisker entered the Lehigh Valley Club meeting on July 21, 1954, the latter was
under a mandate from the former, not only to hire union ironworkers, but to use
only those coming through Schwartz and the union hall, to the exclusion of all
others 24 Weisker was thus directed beforehand to discriminate in its hiring in favor
of union ironworkers who might be sent to the job through Schwartz, and against
all other applicants At the Lehigh Valley Club, Piper followed this arrangement
by securing two union ironworkers for preliminary work immediately through
Schwartz, and arranging with him to supply all others needed for the main job. His
conversation with Schwartz on this subject cannot be construed as a mere inquiry of
the Union, as a source of qualified labor, about the availability of skilled men, or a
nondiscriminatory request that it supply such labor, for when he made it Piper was
under the discriminatory mandate above, and he admitted that he "had to have
union men on the job." Under the circumstances, it is inconceivable that he could
have expected or intended to procure any nonunion labor through the Union, nor
any union ironworkers other than those chosen by Schwartz. To show that Piper's
call upon Schwartz for ironworkers was not discriminatory, Weisker relies on Piper's
testimony that he was merely following his usual practice on out-of-town jobs of
contacting the appropriate unions as the "principal sources" of qualified labor, be-
cause he was not familiar with the local labor situation or availability of qualified
men, and thus had to rely on the unions and their business agents to furnish the type
and number of men he needed; he also testified that if the unions could not supply
his needs, he would bring employees from Weisker's home territory to do the work.
This argument is untenable for several reasons. Weisker's hiring custom, assuming
it was nondiscriminatory, was clearly superseded in this case by the written mandate
from Stoudt which required it to hire on a dicriminatory closed-shop basis and,
within the Union, only through its business agent, a further extension of the illegal
discrimination, as will appeai below. Even if the custom were pertinent or binding
here, I would still be compelled to conclude that it was not the innocent "voluntary
business arrangement" that Piper calls it, for he admitted that Weisker's custom was
to "hire through the union," and that it refrained from hiring otherwise because it
-On the single occasion when a welder vacancy occurred, Piper left it unfilled on
Sinhart's say-so When Sinhart needed a welder near the end of the work, he received
one the day after he told Piper about it, but the record does not show how he was procured.
23 The term "radical ironworkers" is not clearly identified by Stoudt or Schwartz, but
in the light of the well-known cleavage between Paul Seng and his friends on the one
hand, and Schwartz on the other, within the Union, and Stoudt's knowledge of internal
dissension in the Union, and the events of August 6 found above, the term could only
have referred to the Seng faction within the Union. Although Stoudt and Piper may not
have known in detail of the cleavage, nor the names of those in the Seng group, when
they attended the July 21 meeting, Weisker was apprised of the situation through Sinliart
when Paul Seng and Foley told him early in August of their differences with Schwartz.
24 It is inconceivable to me that Weisker, an out-of-town subcontractor, would not adopt
and follow any hieing suggestions of Stoudt, the prime contiactor and a local concein
cognizant of local labor conditions.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had had trouble with unions in the past whenever it hired men "off the streets,"
without regard to "whether their book is paid-what standing they have in the
union." This indicates that the past practice was in itself discriminatory. Nor is
there merit in the argument that Weisker was not required to hire ironworkers
through the local Union, but could have brought employees "from their home local
in Connecticut," under Weisker's "contract with the International." I have found
above from Schwartz' testimony, and it is clear from Weisker's arguments, that
the "contract" encompassed the Union's working rules,25 which permitted an em-
ployer to staff an out-of-town job up to 50 percent with union ironworkers
from local unions other than the one in whose jurisdiction the job is located.
Whether this rule was part of a "contract," or was merely recognized and followed
by Weisker, it still contemplates that Weisker would hire on a discriminatory closed-
shop basis, consistent with the terms of its subcontract with Stoudt; and Piper's
voluntary waiver of the rule at Schwartz' request was clear confirmation of the
closed-shop arrangement. Additional confirmation lies in Weisker's compliance
with other union rules from start to finish: its bid and contract with Stoudt con-
tained union rates for all craftsmen (union working rules 5, 6, and 7); it used a
union working foreman or "gang pusher" on each shift (rules 13-A and 13-B);
there was a union steward for ironworkers on the job from the outset (rule 33);
and none but union ironworkers were used throughout the work. In oral argu-
ment, Weisker admitted it acted throughout "as a signatory with the International,"
that it was "advised and charged with the responsibility of knowing the (union)
Constitution"; and on the basis of article 24, section 11, of that document,26 it
admits that Piper dealt with the business agent of the Union while in Allentown,
"assuming the notice with which he was charged "
Although there is no proof that Stoudt at the July 21 meeting made any agreement
with, or even talked to, Schwartz about the hiring of ironworkers, I conclude that
Stoudt is nevertheless equally responsible with Weisker for the hiring arrangements
Piper made with Schwartz at the meeting, which clearly complied with the discrim-
inatory hiring practice previously imposed on Weisker by Stoudt. Furthermore,
Stoudt admitted that he called the various union business agents to the meeting be-
cause "you only deal with the business agent on all jurisdictional matters, all prob-
lems that you have," and that if there is any trouble on the job, the contractor deals
with the business agent as the representative of the Union. In addition, it is clear
from the testimony of three business agents who attended,27 that they understood at
the meeting that the job would be carried out only with union men, while they did
not state the precise source of this understanding, it is obvious from the prior events
found above, Stoudt's admission as to the reason for the meeting and the invitations
to the business agents, and the events at the meeting itself, that they got the impres-
sion from talks with Stoudt and his subcontractors. This testimony all indicates that
the Lehigh Valley Club meeting was convened by Stoudt with the intent that the sub-
contractors, and Weisker in particular should deal thenceforth with the Unions and
their business agents in regard to hiring and all other personnel problems which
might arise on the impending job; and this was clearly in furtherance of the closed-
shop arrangement initiated by Stoudt. I find and conclude from all of the above
facts and circumstances, contrary to the contentions of Stoudt and Weisker, that on
July 21, 1954, these Respondents were parties to and implemented an agreement
under which all ironworkers needed by Weisker in performance of its subcontract
on the GE project were required to be members of the Union, and had to be hired
through, and placed on the job with the approval of, the Union and Schwartz. Al-
though the Union did not sign the writings which evidenced the agreement, I con-
clude that, insofar as the two employers are concerned, they amounted to an agree-
ment to hire ironworkers in such a manner as to create and enforce a closed-shop
condition in that craft, of the type proscribed by the Act. The Board and the courts
have long held that the mere signing by an employer of an illegal closed-shop agree-
ment is a form of discrimination against employees and applicants for employment
which tends to encourage membership in the labor organization which is a party to
the agreement, and violates Section 8 (a) (3) of the Act. National Maritime Union
of America, 78 NLRB 971, 977, 978, enfd. 175 F. 2d 686 (C. A. 2), cert. denied
338 U S. 954; Amalgamated Meat Cutters and Butcher Workmen, etc. (The
Great Atlantic and Pacific Tea Company), 81 NLRB 1052, 1054, 1055 , and cases
cited in footnote 9. These decisions involved closed-shop agreements between an
See footnote 7, above.2-5
20 Section 11, "Duties of Business Agent," provides that the business agent "shall be
the recognized representative of the local union to the employers and general public."
27 Schwartz, Parks (Electrical Workers), and Hudoch (Plumbers).
H. E. STOUDT & SON, INC. 867
employer and a labor organization, but I am of the opinion that a'similar agreement
between employers alone, which contemplates creation of the same closed-shop con-
dition and involves the same form of discriminatory hiring as the normal employer-
union closed-shop contract, also falls within the proscription of the Act. Cf. Bick-
ford Shoes, Inc., 109 NLRB 1346.
I conclude that, by implementing and thus confirming the closed-shop agreement
aforesaid on July 21, 1954, Stoudt and Weisker discriminated with respect to the
hire of employees and applicants for employment, thereby encouraging membership
in the Union, in violation of Section 8 (a) (3) of the Act, rendered potent but un-
lawful support and assistance to the Union in violation of Section 8 (a) (2), and
also interfered with, restrained, and coerced employees and applicants for employ-
ment in the exercise of their guaranteed right to refrain from joining or assisting
a labor organization, in violation of Section 8 (a) (1) of the Act.28
There is no proof that the Union and Schwartz had any part in the creation of the
illegal closed-shop arrangement prior to July 21, 1954, and they argue strongly
that they did not participate in any illegal conduct or arrangement at the meeting
of that date. The record shows that, at that meeting, following the settlement of
the ironworker-millwright dispute, Piper asked Schwartz about the availability of
qualified ironworkers, learned that Schwartz could supply all he needed, and then
told Schwartz the approximate number he would need, and that he would let him
know later the exact number he needed for each shift. The Union and Schwartz
claim this was the only understanding they had with Weisker about hiring of iron-
workers, and that it was not illegal because it did not exclude directly or by im-
plication any other source or method of hiring by Weisker. If the conversation
outlined above stood alone, there would be force to this argument, because the
Board has indicated that an employer's use of a labor union as a source of labor
on a nonexclusive basis is not illegal, Missouri Boiler and Sheet Iron Works, 93
NLRB 319, 320; and a union does not violate the Act if it has a written understand-
ing with an employer merely that it will send men to a job on request. American
Pipe and Steel Corporation, 93 NLRB 54, 55. However, when Schwartz proposed,
and Piper agreed, that Weisker would waive its right to bring union ironworkers
from outside locals, and would use only local union ironworkers on the job, I con-
clude that Schwartz and the Union thereby became a party to the illicit hiring ar-
rangement between Stoudt and Weisker, for by asking a waiver of that right, based
on the Union's working rule, Schwartz recognized and confirmed the closed-shop
arrangement, and requested its modification so as to confine the hiring to local
union members. Implicit in this arrangement, and in fact in his whole talk with
Piper, was the understanding that Schwartz as business agent would satisfy Weisker's
entire requirements with local union men; and the unspoken but inevitable corol-
lary was, that Weisker would not hire from any other source. This explains why
neither man, so far as the record shows, even mentioned another type of hiring.
In the circumstances, their silence on that subject does not support the argument
that the arrangement was not exclusive or prohibitory of outside hirings. The
Union also points to its established practice of allowing members to solicit their
own jobs, and the fact that O'Donnell, Sr., solicited Weisker for employment and,
was thereafter requested by Weisker and sent to the job by Schwartz, as evidence
that the Union was not the exclusive hiring source used by Weisker. The answer
to this is, first that although the practice mentioned was followed by Seng and'
other union ironworkers in securing employment with Weisker, it was nullified in
their cases by the actions of Respondents on August 6 found above and discussed
hereafter, which resulted in repudiation of the employment secured by their own
efforts; and, second, while O'Donnell, Sr., solicited his own employment at the out-
set, Weisker did not hire him by communicating with him directly, but arranged,
with Schwartz on July 21 to have him sent to the job, following which he was
told by Schwartz, not by Weisker, of his selection and directed to report for work.
Far from supporting the Union's contention, the employment of O'Donnell in this
manner affords the first practical example of the operation of the discriminatory
closed-shop hiring arrangement made by the Respondents. If that arrangement-
had not existed, and Weisker had intended to hire some ironworkers without re-
course to the Union and Schwartz, one could reasonably expect that Weisker would
have hired O'Donnell directly by answering his telegram and directing him to re-
port for work, because Sinhart already knew and had discussed his qualifications
with Piper, and they had reached a decision to use him, before the July 21 meeting.
- 29 See cases cited in preceding paragraph. and Bickford Shoes, Inc., 109 NLRB 1346;_
Construction Specialtses Company, 102 NLRB 1542, 1544, enfd. 208 F. 2d 170 (C A. 10).-
387644-56-vol. 114-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact that they did not contact him directly, but only through Schwartz, is
cogent proof that the illicit hiring arrangement was put into operation on July 21.
The disparate treatment accorded Burns, who applied for work in the same tele-
gram with O'Donnell, further highlights that arrangement : Sinhart knew of his
application , having seen the telegram , and actually hired him as a union foreman
as,found above, but he was not sent to the job through Schwartz, like O'Donnell,
and was refused employment on August 6, as found above. From all of the
above facts and circumstances , I conclude and find that, when Schwartz arranged
with Piper for the procurement by Weisker of all ironworkers needed on the
project from the local Union through Schwartz, the latter Respondents became
parties to the existing illegal hiring arrangement , and as such responsible for any
resultant discrimination against applicants for employment , and did thereby cause
Stoudt and Weisker to discriminate against prospective employees and employees
who might seek or secure employment without recourse to Schwartz and the Union,
in violation of Section 8 (a) (3) of the Act, and that the Union and Schwartz there-
by violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act 29
After the July 21 meeting, Weisker proceeded further to carry out the illegal hir-
ing arrangement . On August 3, 1954, Piper called the union hall from, the GE
plant and told Office Manager Tognoli, in the absence of Schwartz, that Weisker
was ready to start work on Friday, August 6, and would need 18 ironworkers, 6 for
each shift. Tognoli said the men would be ready, and Piper told him to have them
report to Sinhart on the job starting at 4.30 p. in., Friday. Tognoli reported Piper's
call to Schwartz. On August 4, Piper sent a letter to the Union, attention of Tognoli,
confirming his request of the day before.3° Piper admitted that the letter was a
delegation of authority to the Union to hire all the ironworkers needed for the
job and that he himself did not intend to do any hiring of ironworkers except through
that letter. He also admitted that he would not know whether the men furnished
by the Union in accordance with the letter were competent until after he had ob-
served them at work on the job. It is clear from these admissions that Weisker was
implementing the original closed-shop arrangement , not only by hiring exclusively
from the Union , but also by turning over to it Weisker's basic right to select and hire
employees . While there is no proof that Stoudt knew about Piper's specific actions
of August 3 and 4, I nevertheless conclude that Stoudt is legally chargeable there-
with, because it is obvious that Piper acted in fulfillment of his concluding promise
to Schwartz on July 21 to let him know later how many men would be needed
for each shift. This was a necessary step in Weisker's compliance with the mandate
of July 16 and earlier closed-shop requirement which Stoudt had imposed on Weisker,
and thus was a natural consequence thereof.31
On August 6, 1954 , all Respondents collaborated in carrying the illegal hiring
arrangement to its ultimate conclusion . Schwartz took the first step , after learn-
ing that the Seng group had been hired, by his agitated protest to Stoudt that their
employment was contrary to his arrangement with Piper , and his warning that
under the circumstances he could not "live up to" the 50-50 jurisdictional agree-
ment with the millwrights , and that "all deals were off." Stoudt immediately took
the next step , by ieassuring Schwartz that he, as business agent , would still furnish
the ironworkers , and then consulting with Piper , on the basis of which he reaffirmed
the existing hiring arrangement to Schwartz and relayed to him Piper's request that
he furnish a specified number of ironworkers that afternoon . It is clear from
Stoudt's testimony that he stepped into the picture because Schwartz ' warning that
"all deals are off" made him fearful that the jurisdictional arrangement between
ironworkers and millwrights might be upset, giving rise to a labor dispute ,- with a
possible strike and a stoppage of the job.32 After his talk with Stoudt, and'upon
ire Construction Speoiatties Company, supra
3U These facts are based on credited testimony of Piper and Schwartz, and documentary
evidence.
31 In view of the finding above that the Union and Schwartz became parties to the
closed-shop hiring arrangement on July 21, and Schwartz' participation in the events of
August 6, I deem it unnecessary to determine whether those Respondents are legally
responsible for Weisker' s specific actions on August 3 and 4.
3a I do not credit Stoudt's testimony that he intervened because Schwartz claimed an
apprentice had been lured by Weisker, and he was disturbed because both the prime and
subcontracts, as well as the emergency nature of the job, demanded the use of highly
skilled journeymen and precluded use of apprentices . While the record shows that
Schwartz did mention the hiring of an apprentice , John Seng, and that the prime contract
required Stoudt to have the work done in a substantial and workmanlike manner "by
workmen skilled in their respective trades," I am convinced the hiring of one apprentice
H. E. STOUDT & SON, INC. 869
hearing from Office Manager Tognoli that the names of the Seng group had been
in part requested for the project and in part reported to the union hall as hired on
the project, Schwartz ordered Tognoli not to send anyone out to the job, saying
he would take care of it himself . This forestalled any possibility of transmission
of ironworkers to the job, or approval of their hiring, by the Union in his absence,
and indicated his determination to prevent any placement of men on the project
except through his. efforts, even though the Seng group had complied with permis-
sive union practices in securing employment by their own efforts, and in being
reported to the union hall by their foremen as working on the project. Stoudt took
the third step, to remove the cause of Schwartz' complaint and threat, by repudiat-
ing Sinhart 's hiring of the Seng group and reaffirming the existing hiring arrangement
in talks with O'Donnell and Sinhart in the presence of Schwartz. His talk to Sinhart
caused the latter immediately to cancel his prior engagement of the Seng group.
With that group out of the picture, Schwartz took the fourth step by selecting his
own men for the job and giving a list of them to Sinhart who handed it to Piper
when he arrived at the job. Piper took the fifth step by accepting the list without
question or investigation of the men and putting them to work . 33 In so doing,
Piper was completing the abdication of Weisker's basic hiring rights to the Union
and Schwartz inherent in his communications of August 3 and 4 with the Union,
and the precedent hiring arrangements with Stoudt and Schwartz. Piper completed
the action by ratifying and confirming, in his talk with Seng and Foley, Stoudt's
prior repudiation of Sinhart's hiring activities. In their talks with Stoudt, Sinhart,
and Piper that afternoon , Seng and Foley received confirmation of the above ar-
rangements as being the inducing cause of Weisker's refusal to put the Seng group
to work. Sinhart and Piper laid the blame on the mandate from Stoudt, and Stoudt
fell back on the agreement made at the Lehigh Valley Club and Schwartz' com-
plaint to him that morning . It is clear from the above events and their sequence
that, on August 6, 1954, Stoudt and Weisker turned over to the Union and Schwartz
the sole right to choose and supply ironworkers on the project, and at the same time
refused to put to work union ironworkers who had not been chosen and sent to
the job by those Respondents, all in conformity with the illegal hiring agreement
previously reached between them and implemented by Weisker through Piper's
arrangement with Schwartz on July 21, 1954. I conclude that Stoudt and Weisker
thereby discriminated against the ironworkers named in the complaint who were
thus "denied employment, because they were not chosen by Schwartz and sent to
the job through him and the union hall, in violation of Section 8 (a) (3) and (1) of
the Act. I also conclude that the Union and Schwartz on the same date caused
Stoudt and Weisker to discriminate against these ironworkers in violation of Section
8 (a) (3) of the Act, thereby violating Section 8 (b) (1) (A) and (8) (b) (2) of
the Act.34
Respondents argue that their conduct was not in fact or in legal effect discriminatory
because there is no proof that nonunion ironworkers were excluded from employ-
ment on the job. This argument is without merit, because it is now well settled that
it is unlawful for an employer , as between 2 union members , to hire 1 because he
alone is sponsored by a union . Turner Construction Company, 110 NLRB 1860,
citing Radio Officers' Union etc. v. N. L. R. B., 347 U. S. 17. Under the decision
of the Supreme Court in the latter case , discrimination by an employer against an
employee (whether or not a union member ) because he is not sponsored by a union
suffices to establish a violation of Section 8 (a) (3) and ( 1) of the Act From the
actions of Stoudt and Weisker on August 6, it is patent that the Seng group would
have been permitted to work on the project , but for the complaint of Schwartz who
was not the real reason for Stoudt's concern or his intervention . There is no proof that
Stoudt made any point of it in his talks with Piper that day, nor that he or Piper men-
tioned it in their discussions with Paul Seng, the man responsible for the hiring of the
apprentice . If Stoudt 's fear of use of apprentices had been real, lie could easily have
corrected the situation by telling Piper or Sinhart to get rid of John Seng The fact that
he acted to keep 11 qualified journeymen off the job, as well as the apprentice , indicates
that his true motive was to placate Schwartz and carry out the existing arrangement of
hiring only through him
as According to testimony of Sinhart and Piper , the latter had not intended to arrive
on the job that day until just before the 4 30 shift started, the only reason he came
earlier was the hurry call he received from Stoudt that morning. These facts further
indicate that Piper had never intended to have anything to do with the actual selection of
ironworkeis on the job It is inconceivable that Piper would have started hiring men
himself for an important , emergency job, only a few minutes before actual work was due
to start
34 See cases cited in footnotes 28 and 29 above.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in effect insisted upon employment of his nominees. Although Sinhart had made
some investigation of the qualifications of the Seng group before hiring them, Piper
knew nothing about the men Schwartz selected, and made no real inquiry as to their
qualifications; yet he agreed to accept them (aside from O'Donnell, Sr.) sight unseen
in preference to the Seng group. Under these circumstances, it is clear that Stoudt
and Weisker employed Schwartz' nominees in preference to the Seng group, not be-
cause the former were better qualified than the Seng group, or for some other non-
discriminatory reason, but solely because they were sponsored by the Union and
Schwartz, and the Seng group was not. It is well established that an employer's ac-
ceptance of the determination of a labor organization as to who shall be permitted
to work for it is violative of Section 8 (a) (3) of the Act where, as here, no lawful
contractual obligation for such action exists. American Pipe and Steel Corporation,
93 NLRB 54, 56; Turner Construction Company, supra; Engineers Limited Pipeline
Company, 95 NLRB 176, 177. These principles also dispose of Weisker's contention
that it cannot be held liable for any discrimination by Schwartz and the Union against
the Seng group because it did not know Schwartz' motive for the discrimination.
This argument puts the "cart before the horse," for under the above decisions, the
employer's discrimination occurs when it accepts the Union's choice of the employees
who shall work for it, regardless of the motives for the Union's choice; the discrimi-
nation by the employer lies in its acceptance of the Union's choice, to the exclusion
of all other applicants, not in the reasons for the Union's choice. The argument of
the Union and Schwartz that the latter did nothing on August 6 to deprive the Seng
group of the right to work, is completely negated by the fact of Schwartz' protest to
Stoudt that morning, which caused Stoudt and in turn Weisker forthwith to repudiate
the hiring of the Seng group. Considering that the employers had already designated
the Union as the sole source of Weisker's supply of ironworkers, it is patent that
Schwartz' protest was the motivating cause for their rejection of the Seng group.
Looking at it from the Union's side, it is equally clear that their rejection was the in-
tended result of his protest: Schwartz admitted that most of the Seng group had fre-
quented the union hall on and off during the past 2 weeks, but that they were all ab-
sent therefrom that morning, and that after he saw the list with their names in O'Don-
nell's possession, he knew why they were absent, i. e., because they had already been
hired by Weisker. He admitted that when ironworkers in his Union secure their own
jobs, they do not usually report to the union hall the morning of the job, but go right
to the site and start work. Thus, he knew or had reason to believe when he talked
to Stoudt that the Seng group already had jobs on the project through their own efforts.
The fact that he then complained to Stoudt and in effect insisted on employment
of his own selectees, was present when Stoudt repudiated. the hiring of the Seng
group, and then proceeded to send his own nominees, excluding all of the Seng group
but John J. O'Donnell, Jr., to the job, is proof positive that he was deliberately nulli-
fying the exercise of a basic right by members of his own union, in order to retain
control of the hiring on the job, as he had previously arranged with Weisker.35 Under
these circumstances, it is clear that the Union and Schwartz caused Stoudt and Weisker
to reject the Seng group in favor of Schwartz' nominees, thereby violating Section 8
(b) (2) and 8 (b) (1) (A) of the Act.36
as Schwartz admitted the whole illegal agreement and his part in enforcing it, to the
union members at the next union meeting on August 11, 1954, where he told the executive
board, after a complaint by Paul Seng about his actions, that he had removed Paul Seng
and his group from the job and staffed it with men of his own choice on the strength of a
private agreement made at the Lehigh Valley Club with Piper and Stoudt under which
all men would be hired through their respective union halls, and on the basis of that he
had a "right" to place his own men on the job. He made the same statements to the
general membership that night. These facts are based on credible and mutually cor-
roborative testimony of Paul Seng, John Seng, Morrisey, Horvath, and Foley.
z' Turner Construction Company, supra; Sub Grade Engineering Co., 93 NLRB 406, 408,
enfd. 216 F. 2d 161 (C A. 8). In view of the above findings and conclusions, I consider
immaterial to the issues, and make no findings on, testimony about the alleged hiring
customs of out-of-town contractors while in the Allentown area, the authority of Schwartz
under the Union's constitution to secure jobs for his members, the validity or fairness of
his alleged choice of union members for assignment to jobs on the basis of their relative
unemployment status, and the extent of unemployment among the Union's members,
including those in the Seng group, on or before August 6, 1954.
In reaching the above findings of fact and conclusions, I have adopted Stoudt's pro-
posed findings of fact Nos. 5, 18, 19, and 21, in addition to those already adopted above,
and have rejected all others I have also adopted the Union's proposed findings of fact
Nos. 1, 6, 7, 8, 9, and 20, and reject all others. I have rejected all proposed conclusions
of law of both Stoudt and the Union.
H. E. STOUDT & SON, INC. 871
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents described in section III, above, occurring in'
connection with the operations of Respondents Stoudt and Weisker described in
-section I , above, have a close, intimate,, and substantial relation 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.
V. THE REMEDY
Having found that the Respondents engaged in unfair labor practices, I shall
recommend that they be ordered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of the Act.
I have found that Stoudt and Weisker have discriminated against the 12 iron-
workers named in the complaint, thereby encouraging membership in the Union,
in violation of Section 8 (a) (3) and (1) of the Act, and that the Union and Schwartz
caused Stoudt and Weisker to engage in such discrimination in violation of Section
8 (b) (2) and 8 (b) (1) (A) of the Act. I shall therefore recommend that all
Respondents be ordered, jointly and severally, to make each of said ironworkers,
except John J. O'Donnell, Jr.,37 whole for any loss of pay each may have suffered
as a result of the discrimination practiced against him, by payment to him of a sum
of money equal to the amount he would normally have earned on the GE project
from the date of the discrimination against him,38 to the date when that project
was completed, or the date when his services would normally have been terminated
-on that project, absent any discrimination, if that date be earlier, less his net earnings
during that period 39 Back pay shall be computed on a quarterly basis in accordance
with Board policy established in F. W. Woolworth Company, 90 NLRB 289, 291-
-'299. As the GE project was completed on or about August 20, 1954, Respondent
Employers need not offer reinstatement to these men. However, I shall recommend
that Respondents Union and Schwartz notify Respondents Stoudt and Weisker and
.each of these ironworkers in writing that they have no objection to the hiring and
employment of any of said ironworkers, or any other members of Respondent Union,
directly by Stoudt or Weisker without prior clearance, referral, or approval of any
kind by or from the Union or Schwartz. I shall also recommend that Respondents
Stoudt and Weisker make available to the Board upon request payroll and other
records to facilitate computation of the amount of back pay due.
The existence and operation of the unlawful closed-shop hiring arrangement and
practices of all Respondents found above indicates a general purpose to limit the
lawful rights of employees and prospective employees,40 and persuades me that such
practices are potentially related to similar unfair labor practices, the future com-
mission of which may reasonably be anticipated from Respondents' past course of
conduct. The preventive purposes of the Act will be thwarted unless the Board's
order is coextensive with the threat. I shall therefore recommend that a broad cease
and desist order issue against all Respondents.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Local 36, International Association of Bridge, Structural & Ornamental Iron-
workers, AFL, is a labor organization within the meaning of Section 2 (5) of the
Act. ' Robert L. Schwartz, an individual, is the business agent acting on behalf of said
labor organization.
2. By entering into and enforcing an unlawful closed-shop hiring arrangement
or agreement on and after July 21, 1954, thereby rendering assistance and support
to the above Union, Respondents Stoudt and Weisker have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the
Act.
3. By the above conduct, and by discriminating pursuant to such arrangement
,or agreement in regard to the hire and tenure of employment of Paul C. Seng, Robert
97 O'Donnell, Jr , worked the whole project
38 The date is August 6, 1954, for Paul C. Seng, John Seng, Patrick T Seckler, Lester
Alexander, Joseph Tibensky, Michael Foley, and Edward Morrisey, and August 7, 1954,
for Robert Burns, William Lynn, Walter Broadbent, and James P. Dewar.
89 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
,65 NLRB 827, 829.
40 In this report, and in the recommended Order, I have used the term "prospective
employees" as synonymous with "applicants for employment "
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns, Joseph Tibensky, Michael F . Foley, Edward Morrisey , Patrick T. Seckler,
John Seng, William Lynn, Walter Broadbent , Lester Alexander, James P. Dewar, and
John J. O'Donnell , Jr., thereby encouraging membership in Respondent Union, Re-
spondents Stoudt and Weisker have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By all of the above conduct , thereby interfering with, restraining , and coercing
employees and prospective employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, Respondents Stoudt and Weisker have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By entering into and enforcing the unlawful closed-shop hiring arrangement
on and after July 21, 1954, and causing Respondents Stoudt and Weisker to discrimi-
nate against employees and prospective employees in violation of Section 8 (a) (3)
of the Act, Respondents Union and Schwartz have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By causing Respondents Stoudt and Weisker to discriminate as aforesaid, thus
restraining and coercing employees and prospective employees in the exercise of
rights guaranteed in Section 7 of the Act Respondents Union and Schwartz have
engaged in and are engaging in unfair labor practices within the meaning of Section g
(b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 369, International Hod Carriers ' Building & Common _
Laborers ' Union of America, A . F. L. and James Carr and
A. C. Frommeyer , Charles M. Foley, and Joseph E . Murphy,
d/b/a Frommeyer & Company, Party to an agreement. Case
No. 4-CB-P9d8. November 2,1955
DECISION AND ORDER
On July 6, 1955, Trial Examiner Arthur Leff issued his Interme-
diate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, a supporting brief, and a request for oral
argument.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,''
and hereby adopts the findings,2 conclusions, and recommendations of
the Trial Examiner.
'Because the exceptions and brief adequately present the Respondent 's position, the-
request for oral argument is denied.
2 In section III, A, of the Intermediate Report, in describing the conversation between,
Peters and Conway about Carr, the Trial Examiner inadvertently stated that Carr iephed
to Peters . It is clear that it was Conway who so replied The Intermediate Report is
corrected accordingly.
114 NLRB No. 136.