Hod Carriers', Building, Etc., Local No. 652

National Labor Relations Board - Board Decisions

Jun 10, 1964

147 N.L.R.B. 380 (N.L.R.B. 1964)

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Accordingly, I find the following employees of the Employer at
its Fairview, New Jersey, plant constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act :
All employees of Clark-O'Neill Inc., Clark-O'Neill Service Corp.,
Clark-O'Neill List Maintenance Corp., and Clark-O'Neill Mail Sort-
ing Corp., including IBM computers, Robert Brown, Elinore Had-
good, Olga Perez, Jenny Gonzalez, and Sal Brown, but excluding
office clerical employees, professional employees, Paul Palachios,
George Messino, Sidney Handler, Samuel Rosenberg, Louis Wald-
man, Herbert Heinsohn, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Hod Carriers ', Building & General Laborers ' Union of America,
Local No. 652, AFL-CIO [Earl C. Worley] and Waverly Arnold
Brown . Case No. 21-CB-1974. June 10. 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending 'that it cease and desist therefrom- and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent and General Counsel filed exceptions to the Decision
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following amplification
and modifications?
1 Respondent 's request for oral argument is hereby denied as, in our opinion , the record,
including the exceptions and briefs , adequately presents the issues and positions of the
parties.
2We agree with the Trial Examiner that Respondent violated Section 8 ( h)(2) and
(1) (A) of the Act. As alleged in the complaint, and as the Trial Examiner 's Decision
clearly demonstrates , on and after October 18, 1962, Respondent withheld work oppor-
tunities from Brown and, on October 24 , caused Brown 's termination by Worley for un-
lawful considerations.
147 NLRB No. 50.
HOD CARRIERS', BUILDING, ETC., LOCAL NO. 652 381
The Respondent excepts to the Trial Examiner's finding that Earl
C. Worley was engaged in commerce. We find no merit in this
contention.
The Board will assert jurisdiction over all nonretail enterprises $
which have an outflow or inflow across State lines of at least $50,000,
whether such outflow or inflow be regarded as direct or indirect.' No
evidence was adduced to show that Worley (1) either shipped goods or
furnished services outside the State (direct outflow), (2) purchased
goods or services which were furnished directly to him from outside
the State (direct inflow), or (3) purchased goods or services from a.
seller within the State who received such goods or services from outside
the State (indirect inflow). However, Worley did perform lath and
plastering work for Cal-Or during 1962, for which Cal-Or paid him
during that year the sum of $115,500, of which amount $69,825 was
paid Worley for work performed on the Anaheim tract. Thus, the
question is whether, by the performance of these services to Cal-Or,
Worley met the indirect outflow standard established by the Board.'
During 1962, Cal-Or purchased $30,678 worth of major appliances
from Hotpoint, of which amount more than $18,000 worth were in-
stalled in the houses on the Anaheim tract. No further evidence was
adduced upon which the Board would assert jurisdiction over Cal-Or
under the direct inflow jurisdictional standard. However, Cal-Or and
other enterprises engaged in the development of the Anaheim tract
(hereinafter referred to as the Stitch enterprises) were under the com-
mon ownership and management of Alvin R. Stitch and otherwise met
Board criteria to constitute a "single employer" for jurisdictional
purposes .6
The Board has asserted jurisdiction over general contractors en-
gaged both in the construction and sale of residential homes who meet
either the retail or nonretail jurisdictional standard? ' Since Anaheim,
through its real estate broker, Westhome (both Stitch enterprises),
sold the homes built by Cal-Or in 1962 for-more than $1,100,000, the
Stitch enterprises met the Board's retail jurisdictional standard.' We
find, accordingly, that Worley's services to Cal-Or satisfied the Board's
indirect outflow standard.
S\\biley, engnged In the lath and plastering business , is a nonretail enterprise. See,
e.g., International Brotherhood of Electrical Workers , Local No. 349 (Frank Schafer , Inc.),
127 NLRB 210; Eau Claire and Vicinity Building and Construction Trades Council and
Robert Bauer (St. Bridget 's Catholic Congregation , Inc.), 122 NLRB 1341.
* Siennons Mailing Service, 122 NLRB 81, 85.
5 "Indirect outflow refers to sales of any goods or services to users meeting any of the
Board's jurisdictional standards except the indirect outflow or indirect inflow stand-
ard." Id.
6 See, e.g ., Cam-Bre se Corp. d/h/a Owl Drug Company, 128 NLRB 1128.
7 Harry Tancredi, 137 NLRB 743, 745.
8 Carolina Suppie8 and Cement Co ., 122 NLRB 88, 89. The Board also has legal juris-
diction by virtue of Cal-Or' s purchases . from Hotpoint which are not de minimis. See,
e.g., City Line Open Hearth , Inc., 141 NLRB 799 ($10,000 worth of purchases outside of
the State deemed sufficient ) ; N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U. S. 224.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner and orders that
the Respondent, Hod Carriers', Building & General Laborers' Union
of America, Local No. 652, AFL-CIO, its officers, agents , and rep-
resentatives, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications :
Paragraphs 2(e) and 2(f) are amended by deleting therefrom the
words "in accordance with our October 1962 contract with Worley and
others" and "under certain conditions" and substituting therefor the
words "when Worley has work within our territorial jurisdiction."
The fourth and fifth substantive paragraphs of the Appendix are
amended by deleting therefrom the words "in accordance with our
October 1962 contract with Worley and others" and "under certain
conditions" and substituting therefor the words "when Worley has
work within our territorial jurisdiction."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on October 22 and December 13,
1962,1 respectively , by Waverly Arnold Brown , herein called Brown, the General
Counsel of the National Labor Relations Board, herein respectively called the Gen-
eral Counsel 2 and the Board , through the Regional Director for the Twenty-first
Region (Los Angeles, California), issued a- complaint , dated December 20, against
Hod Carriers', Building & General Laborers' Union of America, Local No. 652,
AFL-CIO , herein sometimes called Respondent or the Union, alleging that Re-
spondent has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b) (1) (A) and (2) and Section 2(6) and (7) of the
National Labor Relations Act, as amended from time to time, Stat. 136, herein
called the Act.
Copies of the charges and complaint , together with notice of hearing thereon,
were duly served upon Respondent and copies of the complaint and notice of hearing
were duly served upon , Brown.
Before any evidence was adduced at the hearing, the General Counsel moved to
amend the complaint in certain respects . The motion was granted without objec-
tion and Respondent 's answer was deemed amended to deny each and every allega-
tion of the amendment.
Specifically, the complaint , as amended at the hearing, alleges that ( 1) on or about
June 4, Respondent and Earl C. Worley, herein called Worley and who is engaged,
and during all times material was engaged, in the lath and plastering business at
Whittier, California, entered into a collective-bargaining agreement which expires
on May 1, 1966 , and which establishes an exclusive hiring hall to be maintained
by Respondent for the purpose of supplying Worley and other employers with em-
ployees; (2) since October 18, Respondent has refused to refer Brown to Worley for
employment because Brown had filed unfair labor practice charges against Re-
spondent and because Brown had violated Respondent 's bylaws; and (3) on or about
October 24, Respondent caused Worley to discharge Brown because Brown had filed
unfair labor practice charges against Respondent and because he had violated Re-
spondent's bylaws.
On January 4, 1963, Respondent duly filed an answer denying the commission of
the unfair labor practices alleged. The answer also set forth four affirmative de-
fenses.
1 Unless otherwise noted, all dates herein mentioned refer to 1962.
2 This term specifically includes counsel for the General Counsel appearing at the
hearing.
HOD CARRIERS', BUILDING, ETC., LOCAL NO. 652 383
Pursuant to due notice, a hearing was held at Los Angeles, California, on Janu-
ary 28, 29, and 30, 1963, before Trial Examiner Howard Myers. The General.
Counsel and Respondent were represented by counsel who participated in the hear-
ing. Full and complete opportunity was afforded the parties to can, examine, and
cross-examine witnesses , to introduce evidence pertinent to the issues, to argue orally
on the record at the conclusion of the taking of the evidence, and to file briefs on or
before February 26, 1963. A brief has been received from the General Counsel
which has been carefully considered.
During the course of the hearing , Respondent's counsel made numerous motions
to dismiss the complaint in its entirety or, in the alternative, certain portions thereof.
Said counsel also made numerous motions, during the course of the hearing, to
strike certain testimony. All of said motions were denied. At the conclusion of
the taking of the evidence, Respondent's counsel renewed the aforesaid motions to
strike and to dismiss. Decision thereon was reserved. The motions to strike cer-
tain testimony are hereby denied. The motions to dismiss the complaint in its en-
tirety or, in the alternative, certain portions thereof, are disposed of in accordance
with the findings, conclusions, and recommendations hereinafter set forth?
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF THE EMPLOYERS HERE INVOLVED
Anaheim Properties, herein called Anaheim, is a limited partnership engaged in,
and during all times material was engaged in, the business of developing a tract of
land located at Anaheim, California, for residential housing purposes. Ronal De-
velopment Company, herein called Ronal, a California corporation, during all times
material was the general partner of Anaheim and managed Anaheim's business op-
erations and affairs.
Cal-Or, Inc., a'California corporation and herein called Cal-Or, is engaged in, and
during all times material was engaged in, general building contracting business.
Westhome, Inc., a California corporation and herein called Westhome, is a real
estate broker licensed by the State of California and during all times material was
- engaged in selling real estate.
Anaheim, Cal-Or, Ronal, and Westhome share the same offices at 8622 Wilshire
Boulevard, Beverly Hills, California, and share the rental payments for said office.
They employ the same firm of accountants and keep their business records at the
common office. They employ from one to three office employees at the common
office. The common office employees' salaries are shared and paid by Anaheim,
-Cal-Or, Ronal, and Westhome according to the amount of work performed for said
four firms. Alvin R. Stitch, the president and principal stockholder of Ronal,
Cal-Or and Westhome, sets the labor policies of the common office clerical help.
Although Anaheim, Ronal, Cal-Or, and Westhome maintain separate bank ac-
counts, Stitch signs the checks drawn upon said accounts.
Stitch, as president of Cal-Or, signs its State of California contractor's license,
manages all its business operations and affairs, establishes its policies with respect
to its employees' wages, hours, and working conditions, other than those labor poli-
cies and conditions by which Cal-Or is bound by virtue of a certain written agreement
between Respondent and other labor organizations and Home Builders Associa-
tion,4 owns a majority of capital stock of Cal-Or, and he, his wife, and his sister com-
pose its board of directors.
Stitch as president of Ronal manages all its business operations and affairs, estab-
lishes its policies with respect to its employees' wages, hours, and working condi-
tions, other than those labor policies and conditions by which it is bound by virtue
of the aforementioned agreement between HBA and Respondent and others, owns
a majority of its capital stock, and with his wife and Donald Kelly compose its
board of directors.
3 After the conclusion of the hearing , the General Counsel filed a motion to correct cer-
tain inaccuracies appearing in the stenographic transcript of the hearing. The motion is
hereby granted and the motion papers , copies of which were duly served upon Respondent's
counsel , are received in evidence as Trial' Examiner 's Exbibit No. 1.
' Home Builders Association , herein called FIBA, is an employer association which acts
as the representative of its members for the purpose of collective bargaining and in the
adjustment of labor disputes with labor organizations representing the employees of its
employer- members. Cal-Or during all times material was a member of HBA.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anaheim is a limited partnership controlled by its general partner Ronal, it has
no employees, and all its business operations and affairs are set and managed by
Stitch. Anaheim owned a tract of land located in Anaheim, California, identified
as tract 4165, and during 1962 developed it for residential housing. Anaheim
contracted with Cal-Or to be general contractor for the latter to build forty-
nine 1-family, individual residential homes on said tract. Anaheim advanced the
moneys to Cal-Or to construct the said residential homes .5 The 49 homes were
built in 1962 by Cal-Or and sold that year by Anaheim through its real estate broker,
Westhome, for more than $1,100,000.
. Hotpoint Co., a division of General Electric Company, is engaged in, and during
all times material was engaged in, the manufacture, sale, and distribution of major
appliances, with its manufacturing plants located in Chicago, Illinois, and in Mil-
waukee, Wisconsin. During 1962, Hotpoint through its Los Angeles, California,
district sales office, sold $30,678 worth of major appliances to Cal-Or, of which
amount more than $18,000 worth was shipped to Cal-Or and installed in the houses
Cal-Or had constructed on the aforementioned Anaheim tract. All the appliances
sold to Cal-Or by Hotpoint during 1962 were manufactured at and shipped by rail
from either Hotpoint's Chicago, Illinois, plant or from its Milwaukee, Wisconsin,
plant to Hotpoint's Los Angeles, California, warehouse and then shipped from said
warehouse to Cal-Or.6 The credited and uncontroverted evidence establishes that
when any Hotpoint appliances are stored in Hotpoint's Los Angeles warehouse, title
to said appliances remains in Hotpoint and Hotpoint's Los Angeles sales department
is nothing more than a part of Hotpoint's Chicago and Milwaukee factories?
One of the subcontractors on the job Cal-Or was performing for Anaheim on
tract 4165 was Earl C. Worley, a lath and plastering contractor. During 1962,
Worley performed lath and plastering work for Cal-Or for which Cal-Or paid him
during that year the sum of $115,500, of which amount $69,825 was paid Worley
for work nerformed by him in 1962 for Cal-Or on the aforesaid Anaheim tract.
Upon the basis of the foregoing facts and upon the entire record in the case, it is
found, in line with established Board authority, that the employers here involved
are engaged in, and during all times material were engaged in, business affecting
commerce within the meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act for the Board to assert jurisdiction over this
proceeding.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of Worley.
HI. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
Under date of April 3, 1962, Worley entered into a collective -bargaining contract
with the Union , herein referred to as the April 3 contract, the portion ( article I l.D,
subsection 7) thereof pertinent to the issues in this proceeding reads as follows:
.. . The order of preference in the dispatchment of applicants for employ-
ment is as follows:
Group A: Applicants who a Contractor requests by name who have been laid
off or terminated , from employment of the type covered by this Agreement and
in the area served by the employment facility, within 270 calendar days before
a request from the same Contractor who laid off or terminated them , provided
they are available for employment.
Group B: Applicants whose names are entered on the employment list of
the registration facility and who are- available for employment . Workmen in
Group B shall be referred on a first-in , first-out basis; that is, the first man
registered in that group shall be the first man referred .8
6'I'he Ili ners advanced by Anaheim to Cal-Or were obtained by the former through so-
called eonstruetion loans.
6 In fact, all appliances sold through Hotpoint's Los Angeles district sales office are
manufactured in either Hotpoint's Chicago or Milwaukee factories.
7 Hotpoint's Los Angeles warehouse, for jurisdictional purposes, constitutes "a link [not
a, break] in the chain of Interstate commerce." See, e.g., United Cigar-Whelan Stores
Corporation and Whelan Drug Company, Inc., 114 NLRB 1219, 1220-1221 , and 115 NLRB
1214, 1219.
8 At the time of the hearing, Worley was a signatory to an agreement with Respondent
which was entered into by them on or about October 16, 1962 , and is herein referred to as
the October 16 agreement. The hiring hall provision in this agreement is identical with
the one contained in the April 3 contract.
HOD CARRIERS', BUILDING, ETC., LOCAL NO. 652 385
B. The pertinent facts 9
Brown, the complainant herein, worked for Worley from about August or Sep-
tember 1961 until about December 24, 1961, on various jobs Worley was performing
in Orange County in the State of California.lo
Prior to April 3, 1962, Worley had no contractual relationship with Respondent.
On that date, Robert Fisher, Respondent' s business agent , came to the job which
Worley was then performing and, after checking over Worley's employees, Fisher
asked Worley to sign the agreement which is referred to herein as the April 3 agree-
ment. After Worley had agreed to sign the agreement, Fisher requested Worley to
forward to the Union a list of the names of the men working on the job together
with the signed agreement, advised Worley that he knew that Brown had worked
for Worley during 1961; and then asked whether Worley wanted to again employ
Brown. Worley replied that the reason Brown was not then working for him was
because Brown was employed by another contractor but that he would like to em-
ploy Brown because Brown was a good worker and that he had worked with Brown
before becoming a building contractor. Before leaving the jobsite, Fisher remarked
to Worley, "Well, everything's okay. . . . Get these papers in and everything will be
all right." 11
On May 10, Chilo Ruvalcava, an assistant business agent of Respondent, appeared
at Worley's so-called Sycamore jobsite located at Brea, California, and asked Brown,
who had started to work for Worley that day, whether he had a Respondent clear-
ance to-work for Worley. Brown replied that he had not, adding that he under-
stood that Worley and Fisher had an agreement whereby he could work for Worley
without a clearance.
The next day, Friday, May 11, Ruvalcava, accompanied by Fisher, returned to the
Sycamore jobsite and suggested to Brown that he go to the union hall and put his
name on the out-of-work list, adding that if Worley wanted him , Worley could re-
quest him by name and Respondent would give him a clearance. Ruvalcava then
advised Brown that following this suggested procedure "everything would be com-
pletely legal then." Later that day, Brown went to the Union' s hiring hall and
placed his name on Respondent's out-of-work list.
When Worley arrived at the jobsite the day referred to immediately above, he
noticed that the job had been "shut down." Ruvalcava informed Worley that he
had shut the job down because it was "dirty." Ruvalcava then informed Worley
that as soon as the job was "cleaned up" to call him and he would then allow work
to proceed. Ruvalcava also informed Worley that if he wanted Brown to work for
him he should call the hiring hall and request Brown by name.
On Monday, May 14,12 Brown arrived at Respondent's hiring hall at 7 a .m. ready
to be dispatched to a job.
About the same hour, 7 a.m., May 14, Worley telephoned Respondent' s hiring
hall, informed the dispatcher that, to quote Worley's credited testimony, "Chilo
Ruvalcava told me I could request Waverly Brown for machine hod tender and I
would like to have him on the job." The dispatcher replied that she would take
care of the matter. Brown was not dispatched to the Sycamore job. Instead an-
other man was, who was not put to work by Worley because he admittedly could
not operate a hod machine.
6In the light of my observation of the conduct and deportment at the hearing of all the
persons who testified herein, and after a very careful scrutiny of the entire record all of
which has been carefully rend and parts of which have been reread and rechecked several
times, and being mindful of the contentions of the parties with respect In the eredihility
problems here Involved, of the fact that In many instances testimony was given regarding
events which tonic place months prior to the opening of the hearing. and of the fact that
very strong feelings have been generated by the circumstances of this case. coupled with
the fact that It would unnecessarily protract this report to summarize all the testimony or
to spell out fully the confusion and Inconsistencies therein, the following Is a composite
picture of all the factual issues involved and the conclusions based thereon. The parties
may be assured that in reaching all resolutions, findings, and conclusions herein the record
as a whole has been carefully considered ; relevant cases have been studied ; and each con-
tention advanced has been weighed, even though not specifically discussed.
10 Respondent ' s jurisdictional area is, and at all times material was, Orange County.
u Meaning the signed contract and the list of names of Worley's employees.
12 Respondent does not, and during all times material did not, dispatch men on Saturday
or Sunday.
756-236-65--vol. 147-2G
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 8: 30 a.m . Ruvalcava appeared at the Sycamore jobsite and asked Worley
whether Brown had been dispatched to the job. When Worley replied that Brown
had not been but "this fellow here [had been] and he can't run the machine,"
Ruvalcava asked the man who had been dispatched whether he could operate the
machine. The man replied in the negative. Whereupon, the following ensued,
according to Worley's credited testimony:
"Well, I [Ruvalcava] am going to' get on the phone and call in and find out
why." The radio phone, this is the phone that is in the car, that is a two-way
radio; you can hear it both ways.
He got on this phone and he called in and says to the dispatch lady, asked
her, "Why didn't you send W. A. Brown to this job? Why did you send this
here man? This man is not a machine man. We are going to have to pay him
two hours show-up time."
So there was a man's voice stepped in here, I mean, came in over this radio
phone and says, "We have a letter here from Ray Mendoza 13 that W. A. Brown
shall not go on Worley's job."
Because Respondent did not dispatch any machine tender on May 14, Worley was
unable to do any work on the Sycamore job that day.
At 7 a.m. the next day, May 15, Brown arrived at Respondent's hiring hall ready
to be dispatched. Sometime during the dispatching hours, the dispatcher 14 called
over the loudspeaker for two gunmen.15 Brown thereupon went to the dispatch
window and presented his union dues book to the dispatcher.1e Brown credibly
testified as follows: 17
Q. Was there any conversation between either yourself and Mr. Rodriguez
or yourself and the dispatch woman?
A. Yes.
Q. What was the conversation and who said what?
A. The dispatcher took my book, and she says that she couldn't send me out
on there until Ray Mendoza-there was an attachment there from Ray Mendoza,
and Louie Rodriguez asked me if he could hold my book until he seen what it
was al about. I told him it was quite all right, and presently they passed the
book and called my name. I went up to get my book, and they handed it back
to me and stated that I couldn't go to work for Mr. Worley.
TRIAL EXAMINER: Who said this?
The WITNESS: The. dispatcher told me. And I asked and Mr. Rodriguez
confirmed it.
About 9 o'clock the same morning, May 15, Worley went to Respondent's hiring
hall to ascertain why no machine hod tenders had been dispatched to the Sycamore
job up to the hour. There, Worley, after being unsuccessful in securing the aid of the
dispatcher in 'having Brown or any other machine hod tender dispatched to his
Sycamore job, finally saw Mendoza. According to Worley's credited testimony the
following then ensued:
I told Ray Mendoza that I had to get my job done and I had to have a machine
man, I had to get these machines going . My jobs were shut down, I can't go.
I have work to do.
I told him exactly that Chilo had told me I could request W. A. Brown;
he would send him out; I wanted to know why he wouldn't send him on my job.
He told me, "I am not sending W. A. Brown on your job."
So I said, "I can't understand why. You haven't got anybody else to send me."
He said, "Never mind that."
I said, "The contract says if you don't send me some man I can hire from any
source."
He said, "Never mind about the contract. The contract don't mean nothing.
You do what I tell you to do."
18 Respondent 's secretary and business representative.
14 The record does not disclose the name of this particular dispatcher and Brown testified
that he did not know her name but he had seen her in the dispatch office on numerous
previous occasions, and he described her as being "a woman In her fifties, graying hair,
[wearingl glasses, [and being] short."
Is Meaning, in this instance, machine hod tenders.
10 Besides Dispatcher Louie Rodriguez, an assistant business representative of Respond-
ent was in the dispatching office at the time Brown presented his union dues book.
17 Although called as witness by Respondent, Rodriguez was not questioned about this
incident.
HOD CARRIERS', BUILDING, ETC., LOCAL NO. 652 387
So I said, "Look," I told him, "I am not in here to complain with you.
I want to get the men . I have work to do; I have to get it turned out."
So he told me, he said-he says, "Maybe I can get you one."
So he left and he went out somewhere out of the room and he came back
in with a hod carrier by the name of Frank Ruiz. And he asked this man if he
was a machine tender and this man said, "Yes."
And he asked me if I wanted him on my job today; I said, "No, because I
am shut down today anyway, tomorrow morning."
So Ray said he would send him on the job; he would be there, which this
man was there the next morning.18
Brown was in the hiring hall when Worley was trying to induce Mendoza to clear
Brown for the Sycamore job.
The referral slip given to Ruiz indicates that he registered on the out-of-work
list on May 16, the day he went to work on the Sycamore job. Whereas Brown, the
credible evidence establishes, had registered on the out-of-work list on May 11.19
On July 23, Brown filed a charge with the Board and on August 30, an amended
charge (Case No. 21-CB-1925), alleging that Respondent, on and after May 11,
had unlawfully refused to dispatch him to a job and had caused Worley to discriminate
against him in violation of the Act.
On October 10, the Regional Director for the Twenty-first Region dismissed the
charges on the ground of insufficient evidence.
On October 11, Worley hired Brown as a hod machine tender on a job Worley was
then performing at Garden Grove, California.20 Worley hired Brown although he
knew Brown had not been referred by Respondent, that Brown's name was not on
Respondent's out-of-work list, and that the aforesaid Regional Director had dis-
missed the charges in Case No. 21-CB-1925.
On October 17, Rodriguez came to Worley's Yockey Street job and aaked Brown
whether he had a Respondent clearance to work on the job. When Brown responded
in the negative, Rodriguez stated that Brown was violating the agreement between
Worley and Respondent, shut the job down, then told Brown to go to the hiring
hall and put his name on the out-of-work list. About 4 o'clock that afternoon,
Brown went to the hiring hall and placed his name on the out-of-work list.
At 7 o'clock the next morning, October 18, Brown arrived at the hiring hall ready
to be dispatched to a job. That morning the dispatcher announced over the loud-
speaker that she had a request for two machine hod tenders. Upon hearing this
announcement, Brown immediately proceeded to the dispatch window and handed
in his union dues book 21 The dispatcher, Mrs. Olive Drewa,22 informed Brown
that she could not dispatch him at that time because she had a note to the effect
Brown was to see Mendoza before being dispatched to any job. Brown then went
to Mendoza's office. There, in the presence of Rodriguez, Fisher, and two other
persons whose names Brown did not know but whom he had seen before in the hiring
hall, the following ensued, according to Brown's credible testimony:
Mr. Mendoza stated that he was tired of my shenanigans, that it wasn't a very
smart trick or stunt to pull, to send the letter to the National Labors Relations
Board, and that I wasn't going to run his local, that he didn't know my per-
sonality, but he stated that he'd have to draw the conclusion that I was not too
bright, like the other people in the hall, and had to be told over and over again
what to do, and that I knew I was supposed to come in and see him, and I
interrupted him,at this time and confronted Mr. Rodriguez and asked him if he
told me at the time he took me off the job whether I was supposed to speak
with Mr. Mendoza, and he said no, and I asked him if I put my name on the
list, and he said yes.
I said, "When I volunteered for a job, I was not dispatched. Is that so?"
He said, "Yes."
And I told him, "Well, we have that much straight."
At this time Mr. Mendoza was in the "proceeds" of dismissing me, and he
told me that I would receive a letter on this at a later date.
Is Ruiz worked but 1 day because lie was unable to work the hod machine properly.
Worley was forced , thereby, to furnish the job with handtools.
19 It is to be here noted that the , April 3 agreement provided that Respondent was to
refer men to jobs on a first - in, first-out basis.
20 Herein called the Yockey Street job.
n When a member "hands in" his union dues book it means that the member is applying
for the job just announced.
2" Not the same dispatcher on duty at the time of May incidents referred to above.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 7 a.m. the day of the Brown-Mendoza conversation, referred to immedi-
ately above, Worley telephoned Respondent's dispatcher and requested two machine
hod tenders to be sent to his Yockey, Street job. Respondent, however, dispatched
only one such operator; to wit, Hugo Nothiesen. Respondent did not dispatch Brown
to the Worley job or to any other job that day.
On October 19, Respondent dispatched Brown to a job being performed by
American Plaster at Brea, California. When Brown arrived at the American Plaster
job the foreman thereof told Brown that he had requested Respondent to send him
one operator, that one operator had arrived and had been put to work, and that
Brown's services were not needed. Brown then returned to the hiring hall. When
he told the dispatcher what had transpired at the American Plaster job, she told him
that she would place his name on the retainer list 23 and then suggested that he see
Ruvalcava about collecting showup time. Later that morning, Brown applied to
Ruvalcava for showup time and explained to him what happened at the American
Plaster job. Ruvalcava advised Brown that he would see what could be done for him.
On Monday, October 22, the first dispatch day after the American Plaster in-
cident, Brown arrived at the hiring hall at 7 a.m. ready to be dispatched. Although
other persons were dispatched to jobs Brown was not. About 9:30 a.m.24 Brown
asked Drewa why he had not been dispatched. She replied, after examining the
retainer list, that she remembered placing his name on said list but evidently some
one had removed it. Brown was not dispatched that day.
About 7 o'clock of the morning of the same day, October 22, Worley telephoned
Respondent's dispatcher and requested two machine hod tenders for his Yockey Street
job. The dispatcher replied that she would see what she could do about the matter.
Respondent, however, did not dispatch any machine hod tender to Worley that day.
The same day, October 22, Worley's plaster foreman on a job Worley was then
.performing at Rio Vista and Lincoln Avenue in Anaheim, California,25 telephoned
Respondent's dispatcher and requested two men for his Rio Vista job. Respondent
dispatched but one man that day, J. P. Trotter. Respondent dispatched Trotter to
the Rio Vista job on October 22, despite the fact that (I) Brown was in the hiring
hall and available for work when Trotter was dispatched, and (2) Brown had regis-
tered on Respondent's out-of-work list on October 17, whereas Trotter had not
placed his name on that list until 2 days later.
On October 22, Brown filed a charge with the Board, which together with an
amended charge, is the basis of this proceeding.
Under date of October 22, Worley wrote Respondent as follows:
On Thursday, October 18, 1962, at 7:10 A.M., I put in a request for two
Machine Hod Carriers to be sent to W. B. Gale Construction Tract No. 4592
at Yockey and Mays Sts., Garden Grove, California. Since that date, I have
received only one Machine Tender, Hugo Notheisen.
On October 22, 1962, 1 again called at 7:05 A.M. for the Machine Tenders
I needed. As of 4:00 P.M., I have received none.
Since Laborers' Union Local 652, or its Agents have not furnished me such
workmen, according to Article II, Paragraph E, Page 4 of the Plaster Tenders
Agreement, I have procured W. A. Brown and request a clearance for same 26
On October 23, Worley rehired Brown as a machine hod tender, despite the fact
that Brown had no clearance from Respondent.
On October 24, Respondent received a copy of the charge Brown had filed on
October 22. About 12:45 that afternoon Rodriguez appeared at the Yockey Street
job and'told Brown to clean his equipment and leave the job. Rodriguez then pro-
ceeded to shut down the job. Thereupon, Brown and the two other hod carriers
who had been on the Yockey Street job that day ceased work.
About 2 o'clock the same afternoon, October 23, Worley arrived at the Yockey
Street job and saw that his employees had ceased work. At the suggestion of his
Yockey Street plaster foreman, Worley went to Respondent's hiring hall and saw
Mendoza. Mendoza told Worley that he could cancel said agreement, adding that
%3 \Chen a person is dispatched to a job, like Brown had been dispatched to the American
Plaster job, and is not hired for reasons not of his making , his name is placed at the
head of the "retainer list" and is dispatched on a "first-in, first-out" basis.
24 The dispatch hours were from 7 to 10 a.m.
25 Herein called the Rio Vista job.
26 The October 16 agreement did, in fact , give Worley the.right under the circumstances
to employ workers without a clearance from Respondent.
HOD CARRIERS ', BUILDING; ETC., LOCAL NO. 652 389
Respondent could keep Worley in court in the same manner Brown has been keep-
ing Respondent in court, thus crippling Worley financially. The conversation ended
by Mendoza telling Worley that if Worley wanted a-machine hod tender, he should
request the dispatcher to send him one and that one would be dispatched.
That evening, October 24, Worley telephoned Brown and, after telling Brown of
his talk with Mendoza that afternoon, informed Brown that Mendoza was sending
him a machine hod tender and therefore he had no use for Brown's services.
Under date of October 23, Mendoza wrote the Southern California District Coun-
cil of Laborers as follows:
I hereby charge Waverly Brown, 3001 Killybrooke Lane, Costa Mesa, Cali-
fornia, SS No. 547-36-7430 with violation of the Southern California District
Council of Laborers, Plaster Tenders and Brick Tenders By-Laws, as follows:
Rule No. 1 No member shall be allowed to rustle, solicit, visit or loaf
on any job.
Rule No. 2 All members shall have assignments for clearance cards from
Union office having jurisdiction before going to work and shall be cleared
through office for each job. (Excerpt)
The above violation of the By-Laws, as revised May 1, 1961, took place on
October 17, 1962 while Mr. Brown was working for EARL C. WORLEY PLASTER-
ING Co. Of 14356 E. Flomar Drive, Whittier. The job location was Lariat
Avenue & Yockey, Westminister. (In the vicinity of Westminister Blvd. and
Cannery Street).
Under date of November 14, the aforementioned District Council forwarded Brown
a copy of Mendoza's charges.
Under date of November 20, Brown wrote the District Council as follows:
On November 15, 1962, I received by registered mail a letter stating, I am to
appear for trial, answering charges brought against me by Mr. Ray Mendoza,
Business Representative for Union local #652.
As a dues paying member of the International Union, and this being an inter-
union matter, I feel I should have access to counseling by a representative of
the Union, one who is qualified in the workings of the laws and rules of the
Union.
If I am not entitled to this representation, please advise, and as to where I
can obtain the revised edition of the laws, and by-laws. I have tried unsuc-
cessfully over the past year to get one from my Local, and I doubt if I could
get one from Washington before the trial.
A reply to this letter would be greatly appreciated, I remain.
Under date of November 21, the District Council wrote Brown as follows:
In reply to your request dated November 20th, we have enclosed a copy of
the Working Rules and By-Laws of the Southern California District Council
of Laborers for Plaster Tenders and Mason Tenders, as revised May 1, 1961.
Rules No. 1 and 2, which are the basis for the alleged violations filed against
you, appear on page 12 of this booklet.
This booklet is now in the process of being re-printed because of the change
in wage scales for the Mason Tenders, and this is probably the. reason that
Local #652 has no copies available.
As to your request for counseling by a representative of the Union, you are
free at all times to check with your Local Union and its business representatives
as to the rules of the Union, agreements, etc:
As far as the Trial Board hearing to which you have been cited, you may
bring any witnesses or evidence in your behalf. However, under the provisions
of our Constitution, you may not bring in any legal counsel.
I hope this answers your questions contained in your letter of November
twentieth.
On November 27, the District Council held'a trial based upon Mendoza's charges,
which was attended by Brown, Mendoza, and others. At this trial Mendoza stated
to the trial board that "it was the first time he had ever cited anyone up there before
that Board, and the main reason he had cited [Brown] in front of the Board was
every time he told [Brown] to do something [Brown] sent a letter to the Labor
Relations Board."
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The trial board found Brown guilty of violating rule No. 2 of the Council's
bylaws 27 and fined Brown the amount of $100, suspending payment of $50 of this
amount providing Brown is not again found in violation of any infractions of the
Union's or Council's bylaws.
C. Concluding findings
As found above , in derogation of its collective -bargaining agreement with Worley
Respondent refused to refer Brown to Worley during the month of May, despite
the fact that (1) Brown had worked for Worley in Respondent's jurisdiction 270
calendar days before Worley requested Respondent to refer Brown on May 14,
(2) Ruvalcava's May 11 statements to both Brown and Worley that Worley may
request Brown from the hiring hall and that Brown would be dispatched in accord-
ance with such request, and (3) Fisher's statement to Worley when the latter agreed
to enter into the April 3 agreement that Worley was free to request Brown at any
time and the requests would be honored by Respondent.
On May 15, the following took place (1) both Rodriguez and the dispatcher
refused to dispatch Brown to Worley's Sycamore job, (2) Mendoza told Worley
Respondent would not dispatch Brown for employment to any Worley job, (3)
Mendoza told Worley, in effect, that even though the April 3 agreement permitted
Worley to hire from any source when Respondent failed to furnish him men within
48 hours, Brown would not be dispatched to any Worley job, and (4) Respondent
dispatched a machine hod tender other than Brown to Worley even though said
person had registered on the out-of-work list 5 days after Brown had placed his
name thereon.
In addition, the record clearly discloses, and I find, Respondent refused on
October 18, 22, and 24 to refer Brown to any Worley job but instead referred men
whose names were placed on the out-of-work list several days after Brown had
placed his name thereon.
Since Respondent had not furnished the men Worley requested on October 22,
Worley was free on October 24 to hire from any source he desired provided he
notified Respondent of the name of the person hired. Nonetheless, when Worley put
Brown to work at the Yockey Street job on October 24, Rodriguez ordered Brown
off the job and immediately shut the job down, and Mendoza, the same day, (1)
threatened to cancel the contract between Respondent and Worley, (2) threatened to
ruin Worley financially, and (3) refused to clear Brown even though Worley re-
quested Mendoza to refer Brown to his job.
Moreover, the credited evidence clearly establishes that one of the main reasons
for Respondent's refusal to refer Brown to Worley or to any other contractor was
Respondent's resentment of Brown's exercising his statutory right to apply to the
Board for protection and redress. This finding finds support when consideration is
given to (1) Mendoza's October 18 remarks to Brown to the effect that he was
tired of Brown's shenanigans in filing charges with and writing letters to the Board
purportedly complaining about Respondent, and (2) Rodriguez' ordering Brown off
Worley's Yockey Street job and shutting down the job the very day Respondent
received notice that Brown had filed an unfair labor charge on October 22.
In view of Respondent's failure to offer convincing and reliable explanation for
its refusals to dispatch Brown for a job with Worley or with any other contractor
leads me to the inescapable conclusion that its actions were nothing more than a
means by which to punish Brown for violating its bylaws and working rules which
provides, "All members shall have assignments for clearance cards from Union office
having jurisdiction before going to work and shall be cleared through office for
each job." It thus follows that Respondent's denial of employment to Brown with
Worley or with any other contractor solely because of Brown's failure to perform
the obligations imposed upon him by Respondent's bylaws is conduct violative of
Section 8(b) (2) and (1) (A) of the Act. I so find 28
n This rule reads, "All members shall have assignments for clearance cards from Union
office having jurisdiction before going to work and shall be cleared through office for
each job."
The legislative history of Section 8(b)(1)(A) and (2) demonstrates that one of the
major purposes of these sections was to eliminate the very practices here engaged in by
Respondent, including the discriminating use of hiring halls by not dispatching a person
because "the union does not like him." (Statement of Senator Taft, 93 CCong. Rec. 3836,
4191.) Also see Brunswick Corporation, 135 NLRB 574; International Union of Operat-
ing Engineers, Local No. 12, AFL-CIO (Engineers, Limited and Pacific Pipeline Con-
struction Company ), 135 NLRB 1252; Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent (Valletta Motor Trucking
Co., Inc.), 137 NLRB 1023.
HOD CARRIERS', BUILDING, ETC., LOCAL NO. 652 391
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with business operations of the employers here involved as 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent since October 18, 1962, had engaged in
certain unfair labor practices violative of Section 8(b)(1)(A) and (2) of the Act,
it will be recommended that Respondent take certain affirmative action to effectuate
the policies of the Act.
Having found that Respondent discriminatorily restrained Waverly Arnold Brown
from being employed since October 18, 1962, I recommend that Respondent make
him whole for any loss of pay suffered by him as a result of its unlawful conduct,
by payment to him of a sum of money equal to the amount he would normally have
earned as wages since said date, together with interest at the rate of 6 percent per
annum on said amount, less his net earning since said date. Backpay to be com-
puted and paid in the manner set forth in F. W. Woolworth Company, 90 NLRB 289.
In order to make effective the interdependent guarantee of Section 7, to prevent
a recurrence of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce and thus effectuate the policies of the Act, I will
recommend that Respondent cease and desist from in any manner infringing upon
the rights of the employees or prospective employees of Worley, or of any other
employer, guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Hod Carriers', Building & General Laborers' Union of America, Local No.
652, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. Worley and the other employers here involved are employers within the mean-
ing of Section 2(6) and (7) of.theAct.
3. By refusing to issue job referral slips to Waverly Arnold Brown to any Worley
job since October 18, 1962, thereby causing Worley to discriminate against Brown
in violation of Section 8 (a) (3) of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act.
4. By restraining and coercing Waverly Arnold Brown in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.
5. By causing and attempting to cause Worley, an employer, to discriminate against
his employees in violation of Section 8(a)(3) of the Act, Respondent has engaged
in and is engaging in unfair labor practices within' Section 8 (b) (2) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that Hod Carriers', Building & General Laborers' Union of America, Local
No. 652, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to issue to Waverly Arnold Brown or to any other person a job
referral slip to which they are entitled to under the Act.
(b) In any manner causing or attempting to cause Worley to discriminate against
his employees or prospective employees, including Waverly Arnold Brown, in viola-
tion of Section 8(a), of the Act.
(c) Restraining or coercing employees or prospective employees of Worley, or
of any other employer, in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such right may be affected by an
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement requiring. membership in _a. labor organization. as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Post immediately in its business offices, copies of the attached notice marked
"Appendix A." 29 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by Respondent, be posted
by it immediately upon receipt thereof, and be maintained by it for a period of at
least 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Deliver to said Regional Director signed copies of the aforesaid notice for
posting, Worley willing, at his various jobsites in Orange County, California, where
notices to his employees are customarily posted.
(c) Make Waverly Arnold Brown whole for any loss of wages he may have
sustained as the result of the unfair labor practices in the manner set forth in the
section entitled "The Remedy."
(d) Notify said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision, what steps Respondent has taken to comply herewith.
(e) Notify Earl C. Worley, in writing, that it has no objection to Worley hiring
Waverly Arnold Brown as a machine hod tender in accordance with its October
1962 collective bargaining agreement between Worley and others.
(f) Notify Waverly Arnold Brown, in writing, that it has no objection to Brown
working for Worley under certain conditions and that it has so notified Worley.
(g) It is further recommended that unless on or before 20 days from the date of
the receipt of this Decision Respondent notify the said Regional Director, in writing,
that it will comply with the above recommendations, the National Labor Relations
Board issue an order requiring it to take the aforesaid action 30
^ In the event this Recommended Order be adopted by the Board, the words "a Deci-
sion and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
81 In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF HOD CARRIERS', BUILDING & GENERAL LABORERS'
UNION OF AMERICA, LOCAL No. 652, AFL-CIO, AND TO ALL EMPLOYEES
OF EARL C. WORLEY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our members and the employees of Earl C. Worley that:
WE WILL NOT cause or attempt to cause Earl C. Worley, his agents, successors,
or assigns, to discriminate against any of his employees or prospective em-
ployees or of any other employer in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees or prospective employees of Earl
C. Worley, his agents, successors, or assigns, or of any other employer, in the
exercise of the rights guaranteed in Section 7 of the Act, or in their right to
refrain from all or any such concerted activities, except to the extent that such
right may be affected by the proviso in Section 8(b) (1) (A) of the Act, or by
an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL make Waverly Arnold Brown whole for any loss of pay suffered
because of the discrimination against him.
WE WILL notify Earl C. Worley that we have no objection to Worley hiring
Waverly Arnold Brown as a machine hod tender in accordance with our Octo-
ber 1962 contract with Worley and others.
INT'L UNION OF OPERATING ENGINEERS, LOCAL NO. 9 393
WE WILL notify Waverly Arnold Brown, in writing, that we have no objec-
tion to Brown working for Worley under certain conditions , and that we have so
notified Worley.
HOD CARRIERS ', BUILDING & GENERAL LABORERS'
UNION OF AMERICA, LOCAL No. 652, AFL-CIO,
Labor Organization.
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.
Employees may communicate directly with the Board 's Regional Office , 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any
question concerning this notice or compliance with its provisions.
International Union of Operating Engineers , Local Union No. 9,
AFL-CIO [Schmidt Construction , Inc.] and Nolan R. Ewing.
Case No. 27-CB-$36. June 10, 19611.
DECISION AND ORDER
On March 10, 1964, Trial Examiner E. Don Wilson issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision, and the Respondent filed
a brief in support of its exceptions and an answering brief to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
' The Trial Examiner found , and we agree , that the Respondent caused the discharge of
Ewing because of his lack of union membership , In violation of Section 8(h) (2) and
(1) (A) of the Act. The General Counsel has excepted to the Trial Examiner's refusal to
find that the Respondent also operated a discriminatory hiring hall in violation of Sec-
tion 8 ( b) (2) and (1) (A). We find no merit in this exception , in view of the fact that
both the General Counsel and the Trial Examiner stated during the hearing that this
matter was not in issue.
147 NLRB No. 51.