International Hod Carriers, Building, Etc. Local No. 41

National Labor Relations Board - Board Decisions

Jan 30, 1961

129 N.L.R.B. 1447 (N.L.R.B. 1961)

INT'L ROD CARRIERS , BUILDING, ETC., LOCAL NO. 41 1447
All office clerical employees of Laundry, Dry Cleaning and Dye
House Workers' International Union Local 26; Laundry, Dry Clean-
ing and Dye House Workers' Health and Welfare Trust; and
Laundry, Dry Cleaning and Dye House Workers' Union, Local No.
26, Pension Plan, at their offices at 355 Hayes Street, San Francisco,
California, excluding confidential employees,' all other employees,
watchmen, guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
,'As GatelI is a member of the executive committee of Local 26 which formulates labor
relations policies , we exclude her as a confidential employee.
International Hod Carriers, Building and Common Laborers'
Union of America, Local No. 41 [A. E. Anderson Construction
Company] and John Jeferies. Case No. 13-CB-900. Janu-
ary 30, 1961
DECISION AND ORDER
On September 26, 1960, Trial Examiner Thomas A. Ricci issued
his Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, together with a support-
ing brief; the General Counsel filed exceptions to a single finding in
the Intermediate Report and filed a brief in support of the Inter-
mediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
this proceeding, and hereby adopts the findings,2 conclusions, and
recommendations 2 of the Trial Examiner.
' At the outset of the hearing, the parties entered into a stipulation , based upon the
relevant allegations of the complaint , that the Employer was engaged in commerce, and
that the Respondent was a labor organization . Without stating any reasons therefor, the
Respondent , during the course of the hearing, requested withdrawal of the stipulation.
The request was properly denied by the Trial Examiner . The change of attitude on the
part of the Respondent is no cause for disregarding the stipulation since the Respondent
did not attempt to establish independently that the facts were other than as set forth in
the stipulation . A.. Custen, Inc., 122 NLRB 1242, 1248.
a In support of the reasons given by the Trial Examiner for finding that the Respondent
had authorized Blalock to act as steward on the night shift, we rely upon Stout's un-
controverted testimony that Stone, the admitted steward on the day shift, informed
Stout, when he sought employment on the project, that "Blalock's the night steward."
8 As there is no substantial evidence in the record showing special justification or neces-
sity for a broad order in this case , we shall limit the scope of the Trial Examiner's
recommended order.
129 NLRB No. 177.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, its officers, repre-
sentatives, agents, successors, and assigns, shall:
1. Cease and desist from threatening employees of A. E. Anderson
Construction Company with loss of employment for failure to possess
a union card or permit, or in any like or related manner restraining
or coercing employees in the exercise of the rights guaranteed in
Section '7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its offices and meeting halls copies of the notice attached
hereto marked "Appendix." 4 Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by an official representative of the Respondent, be posted
by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter in conspicuous places, including all
places where notices to its members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Mail signed copies of the notice to the Regional Director for
the Thirteenth Region for like posting by A. E. Anderson Construc-
tion Company, if willing, at all locations within the territorial juris-
diction of Respondent Local 41, where notices to its employees are
customarily posted.
(c) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
* 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."
APPENDIX
NOTICE TO MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING AND
COMMON LABORERS' UNION OF AMERICA, LOCAL No. 41 AND ALL
EMPLOYEES of A. E. ANDERSON CONSTRUCTION COMPANY
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, you are notified that :
WE WILL NOT restrain or coerce employees of A. E. Anderson
Construction Company, Chicago, Illinois, by threatening them
with loss of employment because they do not possess a union
card or working permit issued by this Union.
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL NO. 41 1449
WE WILL NOT in any like or related manner restrain or coerce
employees of A. E. Anderson Construction Company in the
exercise of the rights guaranteed by 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 by Section 8(a) (3) of the Act as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All employees of A. E. Anderson Construction Company are free
to become or remain, or to refrain from becoming or remaining, mem-
bers of any labor organization.
INTERNATIONAL HOD CARRIERS, BUILDING AND
COMMON LABORERS' UNION OF AMERICA,
LOCAL No. 41,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly desig-
nated Trial Examiner in Chicago, Illinois, on July 22 and 23, 1960, on complaint
of the General Counsel and answer by International Hod Carriers, Building and
Common Laborers' Union of America, Local No. 41, herein called the Union or
the Respondent. The sole issue litigated was whether the Respondent had en-
gaged in unfair labor practices affecting commerce within the meaning of Section
8(b)(1)(A) of the National Labor Relations Act. The Respondent and the
General Counsel filed briefs with the Trial Examiner after the close of the hearing.
Upon the entire record and from my observation of the witnesses, I make the
following: 1
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
A. E. Anderson Construction Company, herein called the Company, is a corpo-
ration existing under the laws of the State of New York; it maintains its principal
office and place of business in Buffalo, New York, where it is engaged in the busi-
ness of furnishing industrial construction services to steel mills in various States,
including the States of Illinois and Indiana. It maintains a field office in Chicago,
Illinois. In the course and conduct of its business operations during the calendar
year 1959 the Company performed industrial construction services valued in excess
of $1,000,000 in various States outside the State of New York. I find that the
Company is engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers, Building and Common Laborers' Union of America,
Local No. 41, is a labor organization within the meaning of Section 2(5) of the Act.
i By error the word "South" appears Instead of the word "Stout" on page 49, line 1, of
the record transcript of testimony. It is hereby corrected accordingly.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The incidents giving rise to this case occurred at Indiana Harbor, Indiana, where
the Company, as a subcontractor, was engaged in the spring of 1960 in the repair
and construction of blast furnaces for Youngstown Sheet and Tube Co. It em-
ployed, among other categories of workmen, a large number of laborer members of
the Respondent Union. The complaint alleges that one Edward Blalock, a mem-
ber of the Union, was steward on the night shift, and that during the project he
threatened John Jefferies, a laborer who filed the charge in this case, with loss of
employment for not having either a membership book or working permit from the
Respondent Union. This is the total substance of this entire proceeding. In deny-
ing the essential allegations of the complaint the Respondent disputes the assertions
that Blalock was a union steward and that he made the coercive statements alleged
in the complaint. A last question is whether the alleged statements, if made by a
-union steward, are coercive within the meaning of Section 8(b)(1)(A) of the Act.
The first two apparent issues-was Blalock a steward and did he threaten
Jefferies-are not completely severable questions. The facts upon which the General
Counsel rests his basic contention that Blalock was a union agent include what he
said and did on the job. Indeed, as the hearing progressed, it became clear that
both parties agreed that among the best indications of whether or not one of many
employees is a union steward are the things he does at work as distinguished from
the performance of the other employees. I will therefore first set out the evidence
as to how Blalock conducted himself during the project, resolve such questions as
may arise in that area, and then proceed to the remaining evidence.
The particular job, at Indiana Harbor, for which the Company- hired this group
of laborers, consisted of relining a blast furnace, and continued over a period of
.approximately 8 weeks. It started sometime in February and extended into. the
.,early part of April. The first group of laborers employed was a day shift of about
10 hours, with the number of men then increasing rapidly. After the first week, a
second shift was instituted and from then on there were two 12-hour shifts, the
-day and the night. Four of the laborers who worked on the night shift appeared
as witnesses. Stanley Stout and Charles Butler were hired toward the end of
February; Jefferies was hired on March 2. Blalock, the laborer whose alleged
steward status is in question, was among the first to commence work on the day
shift and transferred to the night shift as soon as it was established. Jefferies was
discharged 3 days after he started; Stout and Butler worked approximately 2 or
3 weeks; Blalock continued until there were only 4 or 5 days of work left and only
six or seven employees remained. While the job was in full swing, there were be-
_ tween 45 and 50 laborers on the night shift.
Jefferies was put to work at 10 p.m. on March 2, the beginning of the night
.shift. His testimony regarding Blalock's conduct is as follows: Shortly after
10 p.m. Blalock asked him if he had a union card, and Jefferies said "No." Blalock
then turned to Stout and Butler, who were nearby, and asked did they know
Jefferies; they said they did. Later, still during the same night, Blalock said to
Jefferies• "If you ain't got no card when you come tomorrow, you can't work."
Jefferies returned to work the next evening, Blalock again asked to see his card,
and when Jefferies did not produce it, he said "You can't work because you ain't
got no card."
Chester Burr was the general foreman in charge of the night shift throughout.
Jefferies went on to testify concerning his termination According to his testimony,
Burr discharged Jefferies in the middle of the shift during the third night that
Jefferies worked. At 2 a.m. he came to Jefferies and said "I got to lay you off
because you ain't got no card because I don't want to get in bad with the Union."
He gave Jefferies two checks, one for 2 days' work which ended a payroll week, and
one for the first night of the next workweek. Burr permitted Jefferies to work out
the shift.
Jefferies left the job that morning with a group of laborers in a truck which
took the men from the furnaces to the gate-a distance away. Blalock was among
them and said to the group: "A man ain't got no business working no way unless
he got a card."
Stout corroborated the testimony of Jefferies. He recalled Blalock asking Jefferies
for his union book and then inquiring of Stout and Butler whether they knew
him. Stout testified that later during Jefferies' first night at work, Blalock told
Jefferies: "If you don't have one [a card] the next day you won't work here," and
then, still later said to Stout: "The guy got to go to get a card if he expect to
work here." Stout was in the truck when Jefferies last departed from the project
and heard Blalock say, "Any man that wanted to work, he should have a card."
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL NO. 41 1451
Stout also said that of the 12 or 14 laborers in the truck then only Jefferies had
no card or permit.
Butler, another laborer, said that Blalock started by telling Jefferies "he had
to join the Union," and that "one morning" going out from work, he heard Blalock
say in the truck: "He couldn't work on the job lessen he was a union man."
Foreman Burr also testified. He recalled Blalock asking for Jefferies' card the
first night, and quoted Blalock as then telling Jefferies: "He'd done a good job.
Now he going to try to get himself straight." Burr did not contradict Jefferies'
testimony as to the discharge conversation 2 nights later.
Blalock admitted he asked Jefferies to show a union card on the first night, and,
as he recalled, "It is a good time for you to get a book and join our local while you
are working here now." As to the conversation in the truck at the time the men
were leaving the yard , Blalock said : "I asked him about joining our union, and
I figured as he is working there naturally I would like to see him join our union."
He denied having voiced any threats to Jefferies about losing his job.
Blalock said he asked seven or eight laborers to show their union cards to him.
There is also conflict in the testimony on whether or not Blalock wore a steward
button on the job. Jefferies made no mention of it although he testified he inferred
from the fact Blalock checked on his union card that Blalock was a steward. Butler
said that although he spoke to Blalock a number of times and even had lunch with
him on occasion in the shanty, he did not see such a button. Stout, on the other
hand, positively swore that practically every day of the 15 or so days that he
worked on the job Blalock wore a steward button on the lapel of his inner coat.
All witnesses agreed it was bitter cold on the night shift; the work was done in the
open. Blalock wore one coat over another, at least when outdoors; in the shanty
while the men ate lunch he sometimes removed the outer garment. Stout conceded
the button might be concealed beneath the outer coat at times, but he never deviated
from his assertion Blalock did wear it. Blalock denied ever having worn a steward
button on this or any other job. His basic position at the hearing was he has never
been a steward for Local 41 at all. Burr, the foreman, also testified he never saw
a steward button on Blalock during the job.
As part of the Respondent's evidence to rebut the affirmative testimony that
Blalock did wear a button, Tripeer, business representative of Local 41, testified
only he is authorized to designate stewards for the Respondent and he never so
,appointed Blalock. He added, stewards are known by their steward buttons, and
he never gave one to Blalock. There is also testimony by Respondent 's secretary-
treasurer, Hoyle Greene, that the Local had no steward buttons left in the spring of
1960, and ordered new ones sometime in March, or later, after these events.
The suggestion by these two witnesses that Blalock could not have worn a button
on this job because none was available serves not at all to offset the direct' testimony
of Stout. Clearly, steward buttons have always been used by Local 41; Tripeer
conceded the ones he distributes are not always turned in, and Greene, reminded
that Stone-the admitted Local 41 steward on the day shift of this very project-in
February 1960 did wear a button, said he "might have had an old one left over."
And Tripeer said he himself gave Stone the badge he wore then. Inasmuch as, on
the Respondent's own testimony, some steward buttons at least could well have been
available for Blalock, the question must turn on the testimony of the persons who
were on the job.
I view the conflict in testimony to be resolved on this point as essentially a dis-
agreement between Blalock and Stout, who contradicted each other directly. Jefferies
was not asked and said nothing about a button; he only gave his impression that
Blalock was a steward. Butler said he did not see any button. This could well be
explained by the fact Blalock wore two coats most of the time on the job, and he is
said to have had the button on his inner coat collar.
Burr, the foreman, would appear at first flush to be a disinterested witness, because
he was not shown to be a member of Local 41 and because the Company-A. E.
Anderson-is not a party to this proceeding. He said Blalock did not wear such a
badge. From my observation of Burr on the witness stand, from a careful analysis
of all of his testimony, and on consideration of other evidence in the record, I
conclude he is not a reliable witness in this case. Firstly, on the principal issue of
the case, which he, a foreman of many years' experience, well appreciated, Burr's
responses were evasive, cautiously guarded, and calculatedly ambiguous To the
direct question whether there was any laborer steward at all on the night shift of 50
men under him, he replied: "It was no one really named that I could remember."
[Emphasis supplied.] Pressed on whether it appeared to him that there was a
steward, and with this recollection refreshed by an earlier affidavit he had given a
Board agent, he replied: "Well, it was two people that I could have thought could
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been the steward." He added one of these was Blalock and the other "Butch,"
whose name he could not recall.
Further, in much of his testimony Burr emphasized the duties normally falling on
the steward, including such important matters as consultation in the matter of
layoffs, discussion of grievances, and care of the injured. Somewhat inconsistently,
however, he explained his inability to say more positively which of the two men-
Blalock or Butch-he "could" have thought was the steward, by saying ". . , it
didn't run across my mind because I wasn't interested." But much more important
on Burr's credibility in this proceeding is the fact the evidence shows directly he
was disposed, even to the extent of outright illegality, to favor Local 41 on this
project. The testimony of Jefferies that when Burr discharged him he said directly
it was because the man was not a union member, stands clear and uncontested, and
I have no reason to discredit it. In these circumstances, I can only credit Burr's
testimony on those points where it is corroborated by credible evidence of other
witnesses.
The credibility issue thus reduces itself to a disagreement between Blalock and
Stout. I credit Stout and find that at least during the approximately 2-week period
that Stout worked-a period including Jefferies' short-lived 3-day tenure on the
job-Blalock wore a steward button for the Respondent Local 41. Stout was a
very frank, direct, and forthright witness. He withstood a very searching cross-
examination and never once deviated in any significant respect from his direct testi-
mony; indeed, by his demeanor and conduct during the cross-examination his testi-
mony became even more convincing . Blalock did not impress me with any com-
parable frankness.
I also find that Blalock voiced the intimidating statements attributed to him by
Jefferies, Stout, and Butler. His recollection of what he did say borders close upon
the phrases they said they heard him speak. His continued pressing concern over
whether the other laborers on the shift had acceptable union cards or permits is
clear on his own admission ; he asked at least seven or eight of them to prove their
union status to him . Burr said that any paid up union member can ask a fellow
workman to show his card , but Stout, also with long experience as a union employee,
said that in all his years of employment only stewards had checked on his union
book . More important , the three General Counsel witnesses gave testimony which
I consider consistent and mutually corroborative. A possible error by one as to the
precise evening when he overheard Blalock in the truck is of no substantial signifi-
cance. On the entire record, and from my appraisal of the apparent sincerity and
candor of the witnesses , I do not credit Blalock's simple denial that he made any
threatening statements.
In disputing the essential affirmative assertion of the complaint that Blalock was
a steward of the Local of this project in March 1960, the Respondent offered pur-
ported proof of certain facts which, its counsel argues, would establish the negative
proposition that at that time, at least, Blalock was not a steward. The first of these
ultimate facts is that Blalock did pay dues for the first 3 months of 1960. Both the
business representative and the secretary-treasurer of the Union testified that exemp-
tion from dues obligation is the reward for steward duties; it is thus argued that the
fact Blalock did pay dues proves his nonsteward status. The second ultimate fact
relied upon is that the contract in effect between Local 41 and the Anderson Com-
pany at this project required that the steward be the last to be laid off. The evidence
is clear and undisputed that Blalock was not the last man on the shift; he left 4 or 5
days before work was completed and while six or seven men stayed on. Here again,
it is contended, is proof he was not a steward. On the total record I conclude that
the Respondent has not shown by probative and substantial evidence, either that
Blalock did pay dues, or that the Anderson Company was contractually obligated
to keep him to the last.
Each member of Local 41 has a dues book in which, at quarterly periods, dues
stamps are affixed as evidence of payments. The Respondent placed into evidence
both Blalock's book and that of Stone. who was steward on the day shift while
Blalock worked at night; both books reveal dues stamps affixed for the first 6 months
of 1960 . Stone's book also shows the word "steward" written in longhand at the
side of the stamps; Blalock's does not contain such writing . The Respondent's
Secretary-Treasurer Greene asserted at the hearing this shows Blalock paid and Stone
did not. Greene also testified, however, that "lots of times" he did not write the
word "steward" in a steward 's book ; he said he did this "merely sometimes." He
also said : "in most cases , we wrote it in his day book , his union book and we entered
it into the ledger as a steward . . . It was usually done [writing "steward" in the
dues book) when we did not have the steward's button." Thus the secretary's own
testimony belies the inference which the Respondent would draw from the condition
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL NO. 41 1453
of Blalock 's book . Rather, in view of the fact Blalock did have a steward button to
wear on the job, absence of the designation on his dues book is completely con-
sistent-in the light of Greene's explanation-with regular steward status.
The secretary -treasurer also testified concerning the Union's records which he
maintains , and for which he is formally responsible in the regular course of the
Union 's business . He described two such records-looseleaf books which the
Respondent's counsel had ,in the hearing room . One is the cash-day-book, in which
each member 's dues payments are entered by the girl in Greene 's office at the
moment they are received . The other is a membership ledger , showing again the
records of payments under each member 's name for successive quarterly periods.
The ledger entries are merely transfers of the running data first made in the day-
cash-book . Reading from these records, Greene testified orally that they show
Blalock paid dues for the first 3 months of 1960 on March 16, and for the second
3 months on June 7. His testimony was that both the daybook sheets and the ledger
contained similar entries as to these two facts.
During the first day of the hearing the Respondent offered into evidence photo-
static copies of those two looseleaf pages of the ledger book containing Stone's
and Blalock's records respectively. The General Counsel did not object to receipt
of these papers. They contain no entries for dues payments by Stone for the first
6 months of 1960, but show March 16 and June 7 as dues payment dates for Blalock.
The General Counsel then called upon the Respondent to produce the day cashbook
from which , according to the secretary -treasurer, the ledger entries had been taken.
On the second and last day of the hearing the Respondent brought into the hearing
room its looseleaf cash-day-book , and again the Respondent offered photostatic
copies of two sheets contained therein , purportedly reflecting the March and June
payments by Blalock. After inspection of the daybook itself, which counsel for
the Respondent stated to be the original of such records regularly made contem-
poraneously with receipt of dues payments , the General Counsel objected to receipt
of photostatic copies, on the asserted ground that examination of all the purported
original sheets , including the two pages seemingly showing March and June pay-
ments by Blalock, would establish that they were not authentically the true pages
in fact written as regular entries such as Respondent 's counsel and his witness Greene
orally stated them to be. The Respondent refused to place the original sheets into
evidence and refused to part with the day-cash-book so that the General Counsel
could offer it as a Government exhibit . I rejected the photostatic copies offered
by the Respondent.
On cross-examination Greene said entries in the cashbook are normally made
by his secretary, whose duty it is to collect dues. He also went on to say that vir-
tually all the entries appearing on the two particular sheets covering March 16 and
June 7, were made by himself. He explained that on occasion, such as when the
girl goes out for coffee, he, or the local president if he should happen to be in the
office, also make entries. The first sheet-including March 16-covers a period of
several days , nand both that one and the June 7 one contain records of dues payments
by some 30 union members, showing the dates, full names, book number, months
covered, and amounts paid.
The General Counsel then asked if there had been other occasions when the
secretary - treasurer himself had made so many consecutive entries in the day-cash-
book in his handwriting and, when the witness said yes, asked whether he could
point to any other such in the looseleaf book, which contains a great many sheets
and spanned a period of several months. After considerable hesitation the witness
selected five consecutive looseleaf sheets, for the period April 21 through April 26,
which in toto contain about 150 names. For the purpose of discrediting the witness
generally, the General Counsel then placed into evidence photostatic copies of these
five sheets and of the two others-touching on March 16 and June 7-originally
offered by the Respondent. The General Counsel contends that these exhibits reveal
on their face that the April sheets are not in the same handwriting as the two others.
From this one fact , he argues it must be found the secretary-treasurer testified falsely
as to the authenticity of the March and June sheets , and that all the Respondent's
records, both the ledger and the cash-day-book, are therefore suspect. A clear
implication of this position is that, whatever may be true of the rest of the daybook,
the March and June sheets brought into the hearing room were not records regularly
made as on their face they purport to have been , but instead were artfully contrived
at a later date for purposes of deceit.
In the light of Green's testimony that he makes entries in the daybook only when
his secretary is not available , I think it highly improbable that he would have
occasion to make as many as 30 consecutive entries on March 16 and again on
June 7 , and more so that he would make almost all of 150 others, as he said he did
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in April. Of course, the fact that March 16 and June 7 chance also to be the
critical dates involved in his testimony, only adds to the high improbability. As to
a comparison in handwriting between the five April sheets and the later two, they
do not appear to me to have been written by the same person. I deem it unnecessary,
however, to make an unequivocal finding that different handwritings are revealed.
The entire purpose of the testimony offered by the Respondent through its secretary-
treasurer was to establish that its records show Blalock paid dues in March and
again in June. In the circumstances of the total record as made, I do not credit
Greene on this principal point. He did not claim to have independent memory
of Blalock's March and June payments; indeed he said his oral testimony was a
mere reading from the "records." With the original records themselves, if such
they were, available in the room, and particularly with the General Counsel taking
direct issue as to their authenticity, Greene's oral statements become clearly sec-
ondary and worthless. And, the Respondent's refusal to permit its records to become
evidence casts such a cloud upon Greene's testimony that I can give it no credence
whatever. Thus, regardless of whether the same or different persons' handwritings
appear on the April and the later dated sheets, the secretary-treasurer's testimony
cannot serve to establish that Blalock paid any dues during the periods in question.
Moreover, the record as it new stands justifies an inference, which I make, that
if the Union's true records were produced they would contain evidence against the
Respondent's interests now. It is a long-settled rule of evidence that failure to
produce records assertedly supporting a material contention gives rise to a presump-
tion that such records would not only fail so to do but would also indicate the
contrary.2 If mere failure to come forth with records allegedly existing supports
an adverse inference, more persuasive must the presumption be when the adverse
party at the trial offers such "records" into evidence and the Respondent refuses
physically to part with them. There is a presumption here, therefore, that consistent
with the secretary-treasurer's testimony that stewards are exempted from dues, the
Union's records would show Blalock did not pay dues during the period he worked
on the Anderson Company night shift from February to April 1960.
The Respondent's contention that Blalock's nonsteward status is evidenced by his
layoff before the project was completed fails of proof for a like reason that the
evidence does not suffice to show any binding contract requiring the Anderson
Company to retain any steward to the end. Tripeer, the business representative,
testified there was such an agreement in effect between Local 41 and the Company.
He specified the contract was not a direct one between these parties, but that Ander-
son operates under written agreement with the Respondent's parent, the International
Hod Carriers Union He went on to say that the International agreement binds
Anderson to adhere to any local agreement that may be in effect in any territory
where it might undertake a project. And, finally, the Respondent offered into
evidence here a photostatic copy of only one page of what it called the "local agree-
ment," not itself signed by Anderson; this sheet contains a provision obliging the
employer to lay off the steward last.
Again, the Respondent did not product the International contract, nor the entire
local agreement, although asked by the General Counsel to do so at the hearing. On
so important an aspect of the main issue of the case, I find the Respondent's state-
ment that the International agreement was not conveniently available insufficient to
justify reliance on Tripeer's unsubstantiated oral testimony. Foreman Burt did not
keep Blalock to the end, and Tripeer says he was obligated to retain Blalock had
the latter been a steward. But the foreman also discharged Jefferies because he had
no union card. Did any contract or arrangement with Local 41 require him to do
2 See, Wigmore, Evidence (3d ed ), sec. 285:
The failure to bring before the tribunal some circumstance document, or witness,
hen either the party himself or his opponent claims that the facts would thereby
be elucidated serves ro indicate as the most natural inference that the party fears
to do so and this fear is some evidence that the circumstances or document or wit-
ness, if brought would have exposed facts unfavorable to the party . . the non-
production of evidence that would naturally have been produced by an honest and
therefore fearless claimant permits the inference that its tenor is unfavorable to
the party's cause [Emphasis in original I
See, also Whitsn Machine Works. 100 NLRB 279, Concord Supplies 4 Equipment
Corp . 110 NLRB 1873. Hslma H Erikson. et at d/h/a Detroit Plastic Products Com-
pany, et at, 121 NLRB 448
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL NO. 41 1455
this also? On this record I do not know why Burr told Jefferies what he did. I
could hardly believe, still absent any contract as evidence, that something else he
may have done on the job in his treatment of employees, was pursuant to an agree-
ment merely because Tripeer says so.
There is further testimony, much of it conflicting, concerning Blalock's activities
during the night shift. This largely touches upon the sort of things which, as all
the witnesses seemed to agree, stewards normally do when one is designated by
Local 41. Thus Stout testified Blalock had no steady work assignment, but only
wandered about looking after things generally. Blalock instead said that he did
work like the other laborers. Butler said that stewards ordinarily interest them-
selves in assisting injured men, and he added he saw Blalock take an injured man
to the doctor in a truck. Blalock disputed this testimony only partially; he said
the man was hurt near him and he did no more than give him immediate assist-
ance to reach the nurse's office. It appears that stewards see that men have a ready
supply of water available and get coffee for them. Stout said Blalock did this,
and then qualified his testimony somewhat by adding Blalock only went around
getting a coffee list from the men and had one "Cincinnati" helping him as the
canteen man. Stewards are also said to lock and unlock the men's shanty and to
be responsible to keep it clean. The foreman said Blalock had no key to the shanty,
and then added no key was needed to lock it anyway. The project being a con-
tinuous round-the-clock operation with two 12-hour shifts, it is a question whether
there was ever any occasion to lock the laborers' shanty. Blalock denied interesting
himself about coffee for the men, or that he was responsible for cleaning the shanty.'
He did say that on occasion the foreman asked him to do it and he did. A steward is
supposed to call time for starting and quitting. The foreman said Blalock did not do
so on this shift, but that the bricklayer steward did it instead. It may be significant
here that the laborer group were in reality helpers to the bricklayer craftsmen, and
their work therefore necessarily started and stopped with the hours of the bricklayers.
Another clear duty of the steward is to discuss grievances with the foreman.
Burr said there was only one grievance on this job and that he spoke to Stone,
the day shift steward, about it. Stone was not called as a witness to corroborate
him. And finally, Burr also testified he normally clears his layoff schedule, as the
work declines, with the stewards, but that on this job he handled the matter entirely
alone. Blalock gave no testimony on this point.
As stated above, I cannot rely upon Burr's uncorroborated testimony; therefore,
I cannot say whether or not Blalock handled grievances or discussed the order
of layoff with the foreman. On the matter of getting coffee and water, cleaning the
shack, and helping injured workmen, the facts are not clear. It may well be that
Blalock did real work a good deal of the time, and still, at times at least, also
assisted in these incidental duties. Some cleaning of the shack and helping of people
he did. At best, however, especially in view of the conflicting and generally vague
testimony here, these do not appear to be very revealing parts of the total story and
cannot serve substantially to resolve the main issue
The basic question is one of fact: Was Blalock steward for Respondent Local
on the night shift? On the entire record I find that the General Counsel has proved
"by the preponderance of the evidence," that he was.3 The Local's standard method
for identifying its designated stewards is to have them wear a steward badge on
the job; Blalock did wear one. He took a widespread interest in checking the union
books or permits of the laborers. At this late stage in the evolution of union life
in the American industrial scene, I find Stout's testimony-that in his long experience
as a laborer only stewards have asked to see his union card-much more persuasive
in this case than the foreman's statement that any paid up union member can ask
to see a fellow worker's card. And in other respects, albeit minor, Blalock did
do some of the things that usually distinguish the steward from others in the group,
he did sometimes clean the shanty and give at least some assistance to an injured
workman. According to Stout, the most credible witness at the hearing, Blalock
called himself a steward when Stout put the direct question to him And, whatever
his total conduct may have been on the job, I am satisfied that he at least looked
like the steward to the foreman, who admitted, despite his clearly partial leaning
in favor of the Respondent, that he "could" have believed Blalock was the steward
Against all this there stands Tripeer's denial that he ever authorized Blalock to act
as steward, or ever gave him a steward button. His denial is effectively weakened,
Glen Raven Salk Mills , Inc, 101 NLRB 239, enfd as mod 203 F 2d 946 (C A 4)
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if not virtually offset, by the Respondent's refusal to permit its records, assertedly
supporting the business representative's testimony, to become part of the evidence.
There is also the fact Blalock was not the last laborer to leave the job. He could,
of course, have chosen not to remain to the end, for even assuming an obligation
upon the Anderson Company to keep a steward to the last, there is no contention
a steward is himself required to remain. Were I to consider, on the basis of expert
knowledge, that on union construction jobs generally the steward is the last to go,
I would have to take cognizance of the further fact, also widely known, that among
a single group of 45 or 50 workmen on a union construction project, one steward
will be found. Indeed, this is the basic purport of the foreman's testimony despite
varying statements by other witnesses that there may be situations, usually of smaller
groupings, without a steward. The Respondent would have it that there was none
here.
In sum, I find, on the entire record, that Blalock was the steward for Respondent
Local 41 on the night shift of this project when Jefferies was employed. I have also
found that he more than once threatened Jefferies with loss of his job if he did not
immediately produce satisfactory evidence of membership in the Respondent or
other proof of permission by the Respondent to remain at work.
The Board has held that such threats, voiced by a union steward, are coercive
within the meaning of Section 8(b) (1) (A) of the Act, as alleged in the complaint,
and are chargeable to the Respondent Union through ordinary principles of agency.4
Accordingly, I find that by Steward Blalock's threats to employee Jefferies on March
2 and 3, 1960, the Respondent violated Section 8(b)(1)(A) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the entire record, I make the
following:
CONCLUSIONS OF LAW
1. International Hod Carriers, Building and Common Laborers' Union of America,
Local No. 41, is, and at all material times has been, a labor organization within the
meaning of Section 2(5) of the Act.
2. By threatening employees of A. E. Anderson Counstruction Company with loss
of employment for failure to possess a union card or permit, the Respondent has
restrained and coerced employees in the exercise of the rights guaranteed by Section
7 of the Act and has thereby engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
4 For threats to cause loss of employment by agents of a labor organization, see,
Local 212, International Union, United Automobile, Aircraft and Agricultural Workers of
America, UAW-AFL-CIO (Chrysler Corporation), 128 NLRB 952, Cory Corporation
(Local x±1150, United Electrical, Radio & Machine Workers of America, et al.), 84
NLRB 972; and Local 169, Industrial Division International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America, AFL (Rheem Manufacturing Com-
pany), 111 NLRB 460. For a labor organization's responsibility under this section of
the statute for acts of its stewards, see Local 761, International Union of Electrical, Radio
and Machine Workers, AFL-CIO (General Electric Company), 126 NLRB 123.