Ironworkers, Local 10

National Labor Relations Board - Board Decisions

Apr 28, 1972

196 N.L.R.B. 712 (N.L.R.B. 1972)

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Ironworkers , Local No. 10
(Guy F. Atkinson Company) and William H. Burton
International Association of Bridge, Structural and
Ornamental Ironworkers, Local 10 (Springfield
Metal Buildings Company) and Donald James Bella-
my. Cases 17-CB-887 and 17-CB-899
April 28, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 18, 1971, Trial Examiner Bernard J.
Seff issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief, and counsel for the General Counsel
filed an answering brief to the Respondent's excep-
tions and a motion (1) to correct the Trial Examiner's
Decision and (2) to conform his notice to his proposed
Order.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions to the extent con-
sistent herein.
In each of these cases the Trial Examiner found
that the Respondent, international Association of
Bridge, Structural and Ornamental Ironworkers, Lo-
cal 10, herein also called the Union, maintained an
exclusive hiring arrangement with each Employer and
that in the operation of the arrangement caused each
Employer to refuse to hire the Charging Party in-
volved because that person was not a member of the
Respondent. The Trial Examiner therefore found that
the Respondent had violated Section 8(b)(1)(A) and
8(b)(2) of the Act in each case. For the reasons set
forth infra, we conclude that the Respondent did not
violate the Act in Case 17-CB-887 with respect to
Charging Party William H. Burton, but that it did
violate the Act in Case 17-CB-899 with respect to
Charging Party Donald James Bellamy.
Case 17-CB-887
Although we agree with the Trial Examiner that
the Respondent and Guy F. Atkinson Company,
hereinafter called Atkinson, maintained an exclusive
hiring arrangement, in which the Respondent was a
knowing and active party,' we find that there is insuf-
ficient evidence in the record to show that, as a result
of this arrangement, the Respondent caused Atkinson
to refuse to hire Burton in violation of Section 8(a)(3)
and thus violated Section 8(b)(2) of the Act.
Section 8(b)(2) in pertinent part states that "[i]t
shall be an unfair labor practice for a labor organiza-
tion or its agents ... to cause or attempt to cause an
employer to discriminate against an employee in vio-
lation of subsection (a)(3)," i.e., in order to encourage
or discourage membership in a union. In order to
sustain a finding of a violation of Section 8(b)(2) here,
there must be demonstrated that there did exist an
exclusive hiring arrangement between Atkinson and
the Union as a result of which the Union caused
Atkinson to discriminate against Burton in the pros-
cribed manner.
Here, the Trial Examiner simply found that there
existed an exclusive hiring arrangement between At-
kinson and the Respondent whereby Atkinson looked
to the Respondent for its employees. He found that
Burton had gone to the Atkinson jobsite seeking em-
ployment. He then found that in numerous visits to
Respondent's hiring hall, and in various telephone
calls to Respodent's business agents, Burton had nev-
' Respondent has no objection to the motion and therefore the Trial
Examiner 's Decision is corrected in the following respects : the case number
of the second case consolidated for hearing is changed from Case 17-CB-889
wherever stated in his Decision to Case 17-CB-899, which is the correct case
number Also , in our revised notice , we have taken account of the fact that
neither Charging Party was ever a member of the Respondent.
2 The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board 's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
Incorrect Such a conclusion is not warranted here . Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A. 3). The Respondent also
claims that the Trial Examiner deliberately distorted and altered the record
evidence in order to support his findings. Although the record shows the Trial
Examiner did misquote certain testimony of witness Bowlby we find this
inadvertent error was not prejudicial to the Respondent (See In . 3 for further
discussion ) We have made our own independent review of the record and
find that the error does not distort the essence of Bowlby's testimony, as
recounted by the Trial Examiner . We also find that the Trial Examiner
evinced no prejudice or bias at the hearing against the Respondent 's position
3 In agreeing with the Trial Examiner that such an arrangement was in
existence we look to Bowlby's , Atkinson's labor relations manager, oral
agreement with Pfister , the Respondent's business representative , that Atkin-
son would hire through the Respondent Thus, Bowlby testified that
We had an understanding that we would hire our men through the Local
10 Pfister said that at that time he didn 't know whether we would
get our men out of Kansas City or Springfield.
Taken in this context , and in light of Bowlby's entire testimony , we have
determined that the Trial Examiner's misquotation of Bowlby's testimony,
in sec. III, last sentence of par . 3, wherein he attributed to Bowlby the
statement, "Pfister said he did not know whether we would get all our men
out of the Kansas City or Springfield, Missouri offices of the Union" (thereby
pertinently adding the emphasized word "all" to the statement), does not
detract from the correctness of his ultimate conclusion that an exclusive
arrangement existed.
We further find that there was an exclusive arrangement based on the
facts, as related by the Trial Examiner , that the Union periodically told
Atkinson which union source to utilize in securing its ironworkers and that
it generally monitored Atkinson's actions connected with the hiring of the
ironworkers
196 NLRB No. 92
IRONWORKERS , LOCAL 10 713
er been referred to a job and had been told that he
would not be until all of the Respondent's members
had been taken care of. Based on these conclusions,
the Trial Examiner found that the Respondent had
violated Section 8(b)(2) of the Act. We do not agree
since we have found no evidence to demonstrate that
the Respondent's operations caused this particular
employer, Atkinson, to discriminate against the
particular employee, Burton.'
Burton was at the hiring hall of the Respondent in
February 1971, on an almost daily basis. The Trial
Examiner does not relate in his Decision how the
Respondent operated the hall, but, from the record, it
would appear that since Burton's testimony was cred-
ited then the Union was operating, in February 1971,
a discriminatory hiring halls However , it is undisput-
ed that in February, 1971, Atkinson was not hiring
any ironworkers. It is Burton's testimony that after
the end of February he never returned to the hiring
hall.
Burton made his first visit to the Atkinson jobsite
some time in mid-February and he, at that time, spoke
with Bowlby who told him, according to Burton, that
he would not be hiring for a while. Burton returned
to the jobsite a few weeks after and spoke with Fowl-
er, the superintendent of the ironworkers. Both are in
accord that Fowler did not offer Burton a job but
rather outlined the procedure he followed in hiring
which involved Fowler's requisitioning personnel
through Bowlby.6 Burton did not then contact Bowlby
but rather returned to the site shortly thereafter and
spoke again with Fowler and then in May 1971, ac-
cording to Burton, he spoke with Bowlby at the site.?
Fowler stated that he was never told by the Union
he could not hire Burton nor did he ever request Bur-
ton.
In one of his trips to the site in March 1971, Burton
testified that he was told that Atkinson had a call in
to the Union for more ironworkers. Thereafter, Bur-
ton called Respondent's representatives Folsom and
Landi who, Burton testified, told him that at that time
they knew nothing about a call from Atkinson. Bur-
ton also sent a letter to Landi stating his willingness
to work on the jobsite. Burton testified that neither
Folsom nor Landi ever specifically said they would
refuse to send Burton out to the Atkinson jobsite.
The record thus shows that, at the time Burton was
in the hiring hall in February 1971, Atkinson was not
then hiring and, at the time Atkinson was hiring
ironworkers, Burton was not at the hiring hall. In fact,
Burton never returned to the hiring hall after Feb-
ruary 1971. No one from Atkinson ever specifically
requested Burton or told him that if he could obtain
the approval of the Union he would be hired. Lastly,
no representative of the Respondent ever told Burton
he would be refused referral specifically to the Atkin-
son jobsite.
On such a record, we must find that the Respon-
dent did not cause Atkinson to refuse to hire Burton
and hence we find the Respondent did not violate
Section 8(b)(2) of the Act in Case 17-CB-887.
Case 17-CB-899
This is not the type of situation where it is unnecessary to find that a
particular employer has been caused to discriminate . Cf. Local 18, Bricklay-
ers, Masons and Plasterers ' International Union of America, AFL-CIO (Union
County Bldg Contractors Assn ), 159 NLRB 303, 310 (1966). General Counsel
in his brief to the Trial Examiner stated the theory of his case thus, "The
Complaints allege that exclusive hiring arrangements exist with these two
employers only, so that whatever occurs with respect to the hiring of
ironworkers by other employers is not relevant to the issues at hand " The
corollary to this statement is that the operation of the hiring arrangement
must then be shown to have caused the particular employer, Atkinson, to
refuse to hire Burton . This has not been shown.
3 There was no independent allegation of an 8(b)(l)(A) violation made,
however , by counsel for General Counsel in the complaint, at the hearing,
or in any of his briefs thereafter , and hence we will not now find such a
violation.
6 This is the conversation to which the Trial Examiner in effect alludes in
section III , par. 8 . Burton testified that he told Fowler then that he would
need to send a letter to the Union specifically requesting Burton for the job
(Burton had noticed that people at the hall were often specifically requested)
and he testified that Fowler later told him he could not do this. Fowler
testified that he told Burton the first time he did not think he could arrange
to have Atkinson write such a letter. The Trial Examiner's recitation of the
conversation is based on Fowler 's testimony.
7 Burton testified that , in his second talk with Fowler, he was told by
Fowler that Atkinson had agreed with the Union not to bring in any out-of-
local men for work on thelobsite . Fowler, whose testimony in other respects
was credited by the Trial Examiner , said only that he again told Burton the
procedure and that he had no control over whether or not he got him. The
Trial Examiner did not set out this discrepancy in his decision and the
counsel for General Counsel did not except to the Trial Examiner's failure
to do so. Hence , since the Trial Examiner generally credited both of these
We agree with the Trial Examiner that the Respon-
dent violated Section 8(b)(2) and 8(b)(1)(A) of the Act
herein for the following reasons.
While we agree with the Trial Examiner that
Springfield Metal Buildings Company, hereinafter
called Springfield Metal, maintained an exclusive hir-
ing arrangement with the Union, we do not agree with
his rationale for so finding. The Trial Examiner cor-
rectly stated that it was Springfield Metal's consistent
practice to hire only those who were cleared or refer-
red by the Respondent. This, without more, however,
merely shows a unilateral practice on Springfield
Metal's part so to act and does not show the
Respondent's participation therein. Hence, on the
Trial Examiner's exposition of the facts, no exclusive
arrangement has been demonstrated.' But, we are
witnesses , we cannot from the record use Burton's account in our decision
to show causation
8 We find the citation of Local 7, International Association of Bridge, Struc-
tural and Ornamental Iron Workers , AFL-CIO (Waghorne-Brown Company),
144 NLRB 925, by the Trial Examiner to be inapposite on the state of the
facts he has related in his Decision.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
convinced that, on the record, counsel for General
Counsel has demonstrated the existence of an exclu-
sive arrangement , herein, in opposition to the
Respondent's position that none existed.
We note, as did the Trial Examiner, the testimony
of Springfield Metal's manager , Bell, who stated that
his Company was strictly a union operation and that,
when the Company was in need of men in any
particular craft, the Company would go to that
particular craft's union. We note additionally, al-
though the Trial Examiner did not, that both Bell and
Smith, the superintendent for ironworkers in charge
at Springfield Metal, could not recall an instance
where Springfield Metal hired an ironworker directly
for a job which was within the Respondent's jurisdic-
tional area . With respect to Springfield Metal and the
Union, Bell testified that they had an "excellent" rela-
tionship and that he, himself, "would not do anything
to jeopardize my company's position in that relation-
ship."
The Union's knowledge of, and participation in,
this relationship is demonstrated in the record evi-
dence involving a phone call that Byrd, the
Respondent's representative, made to Bell . The call
was made at the time Bellamy was attempting to gain
clearance to go on two different jobs with Springfield
Metal within the Union's geographical jurisdiction.
The setting is as follows.
Shortly after Bellamy had been offered a job in
LaCygne, Kansas, by Smith, Bell received a call from
Byrd. Bell testified that Byrd told him that Bellamy
had been talking of going to work at LaCygne. Byrd
told Bell that the LaCygne job was in Local 10's juris-
diction and that Bellamy had not gone through Local
10's apprentice program but rather had his union
book from Texas. Bell testified further that a few days
later he told Smith that he had been informed by Byrd
that the LaCygne operation was in the Respondent's
jurisdiction. Smith, himself, testified that Bell told him
that he had spoken with Byrd and that the job was in
the jurisdiction of the Respondent and the job would
have to be given to a man who was a member of the
Respondent. Smith testified he then told Bellamy he
could not hire him because he needed a man with the
Respondent's book. Smith ultimately hired a man
who was a member of the Respondent?
Byrd's phone call to Bell , in light of Bell's and
Smith's statements on the practice that Springfield
Metal followed in its hiring, leads us to the conclusion
9 The Trial Examiner relied in his Decision on none of the facts set forth
in the above paragraph . However , these facts are based on the testimony of
Bell and Smith . These witnesses were credited by the Trial Examiner when
they gave other testimony and they are nowhere discredited in his Decision.
Conversely , Byrd , who gave another version of his phone call to Bell, was
discredited by the Trial Examiner whenever the Trial Examiner referred to
his testimony in his Decision and was nowhere credited . Hence , we rely on
Bell's and Smith's recounting of the facts in the above paragraph
that there was, in fact , an exclusive hiring arrange-
ment between Springfield Metal and the Respondent
concerning work the Company did in the
Respondent 's jurisdiction and that Byrd's message to
Bell was simply that Bellamy could not be hired be-
cause he was not a member of the Union and his name
had not been specifically requested for clearance.
That Springfield Metal did not wish to vary from the
practice of hiring only with the Union 's approval is
evident from Bell's testimony:
A. [Bell testifying] I believe in my own mind,
knowing what little I do about union operations,
I believe that a man needed to be cleared through
the hall to obtain a job.
Q. This at least was your practice , is this what
you are saying , to have a man cleared through the
hall?
A. Yes, it was our habit and Mr. Bellamy's
particular case , our relationship with the
Ironworkers local has been excellent since I have
been there , and frankly , I would not do anything
to jeopardize my company's position in that rela-
tionship.
We note also as the Trial Examiner did, that Bella-
my, himself , was unsuccessful in his contacts with
Byrd in being cleared by the Respondent for the job
offered by Smith and for another job offered him by
Springfield Metal . In both instances , when Bellamy
attempted to obtain clearance from the Respondent,
Byrd , in effect , told him that he would be allowed to
clear the hall only when all of the Respondent's mem-
bers had been sent out to jobs first.
On all the facts , we conclude the Respondent viola-
ted Section 8(b)(2) of the Act when it caused Spring-
field Metal to refuse to hire Bellamy.10
Since we have found that the Respondent has not
violated the Act with respect to Burton but has done
so with respect to Bellamy we enter the order herein.
AMENDED CONCLUSIONS OF LAW
1. Guy F. Atkinson Company and Springfield Met-
al Buildings Company are employers within the
meaning of Section 2(2) of the Act and are engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
10 We note, but find no significance in the fact that the Respondent was
never specifically requested to clear Bellamy for hire by any of Springfield
Metal's officials Smith did not call the hall to clear Bellamy since he had
been apprised of the fact that Bellamy , because he was not a member of the
Respondent , could not under the arrangement that existed between the Re-
spondent and Springfield Metal be employed on the job at LaCygne. Nor do
we find it significant that Springfield Metal officials testified that they were
never specifically told they had to use the Respondent for clearance or
referral since we have deternuned that this relationship developed through
practice and acquiescence
IRONWORKERS, LOCAL 10 715
3. By attempting to cause and by causing Spring-
field Metal Buildings Company to discriminate
against Donald James Bellamy in violation of Section
8(a)(3) of the Act, the Respondent has violated Sec-
tion 8(b)(2) and 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and(7) of
the Act.
5. Respondent has not violated the Act in any re-
spect alleged in Case 17-CB-887.
THE REMEDY
Having found that the Respondent engaged in un-
fair labor practices proscribed by Section 8(b)(1)(A)
and (2) of the Act, it will be ordered that the Respon-
dent cease and desist from such conduct and take
certain affirmative action designed to effectuate the
policies of the Act.
The Union discriminated against Donald James
Bellamy by causing Springfield Metal Buildings Com-
pany to refuse to hire him. Therefore, it will be or-
dered that the Respondent make whole Bellamy for
any loss of earnings he suffered by reason of the dis-
crimination practiced against him, by paying him a
sum of money equal to the wages he would have
earned on and after May 1971 absent such discrim-
ination , less his net earnings elsewhere during said
period. Such loss of earnings with interest thereon at
the rate of 6 percent per annum shall be computed in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
(c) In any like or related manner restraining or
coercing employees or applicants for employment in
the exercise of rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds necessary to effectuate the purposes of
the Act:
(a) Make whole Donald James Bellamy for any loss
of pay he may have suffered by reason of the discrim-
ination practiced against him, in the manner set forth
in the section in this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records, reports, work lists, and other documents
necessary to analyze the amount of backpay due un-
der the terms of this Order.
(c) Notify Springfield Metal Buildings Company, in
writing, that there is no objection to the hiring or
employment of Donald James Bellamy.
(d) Post at all places where notices to employees,
applicants for referral, and members are posted, cop-
ies of the attached notice marked "Appendix."" Cop-
ies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by the
Union's representatives, shall be posted by the Union
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by the Union to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint in Case
17-CB-887 be dismissed in its entirety.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Inter-
national Association of Bridge, Structural and
Ornamental Ironworkers, Local 10, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Springfield Met-
al Buildings Company, or any other employer, to dis-
criminate against Donald James Bellamy, or any
other employee, in violation of Section 8(a)(3) of the
Act because of his lack of membership in the Union.
(b) Maintaining, enforcing, or otherwise giving ef-
fect to a discriminatory exclusive hiring arrangement
or practice with Springfield Metal Buildings Compa-
ny.
11 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Borad "
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act and orders us to post this notice
and abide by its terms.
WE WILL NOT cause or attempt.to cause Spring-
field Metal Buildings Company, or any other em-
ployer, to discriminate against Donald James
Bellamy, or any other employee, in violation of
Section 8(a)(3) of the Act because of his lack of
membership in our Union.
WE WILL NOT maintain , enforce, or otherwise
give effect to a discriminatory exclusive hiring
arrangement or practice with Springfield Metal
Buildings Company.
WE WILL NOT in any like or related manner re-
strain or coerce employees or applicants for em-
ployment in the exercise of rights guaranteed in
Section 7 of the Act.
WE WILL make whole Donald James Bellamy
for any loss of pay suffered by him by reason of
the discrimination practiced against him.
WE WILL notify Springfield Metal Buildings
Company, in writing, that there is no objection to
the hiring or employment of Donald James Bella-
my.
INTERNATIONAL ASSOCIATION
OF BRIDGE , STRUCTURAL AND
ORNAMENTAL IRONWORKERS,
LOCAL 10
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 610 Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone 816-
374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J . SEFF . Trial Examiner : This proceeding, tried
before me at Kansas City, Missouri , on September 23 and
24, 1971, 1 with all parties present and duly represented by
counsel or in person , involves separate complaints? Pur-
All dates referred to are in 1971 unless otherwise specified
2In Case 17-CB-887 the complaint issued July 8 on a charge filed May
3 and the first amended charge filed July 6 . In Case 17-CB-889, the com-
plaint issued August 30 on a charge filed on July 2 and an amended charge
filed on August 30.
suant to Section 10(b) of the National Labor Relations Act
(herein called the Act), the cases were consolidated for pur-
poses of trial and decision , allege in substance that Interna-
tional Association of Bridge , Structural and Ornamental
Ironworkers , AFL-CIO, Local Union No. 10 (herein called
Respondent or Union), pursuant to understandings or
agreements with various employers , operated an exclusive
hiring arrangement , and in the course thereof discriminated
against the Charging Parties in referrals for employment in
violation of Section 8(b)(2) and (1)(A) of the Act.
At the trial all parties were permitted to introduce rele-
vant evidence , to examine and cross-examine witnesses, to
argue orally on the record, and to submit briefs . Oral argu-
ment was waived. Briefs submitted by the General Counsel
and Respondent , respectively , have been duly considered.
Upon the pleadings , stipulations of counsel , the evidence,
in cluding my observation of the demeanor of the witnesses
while testifying , and the entire record in the case , I make the
following:
FINDINGS OF FACT
I THE BUSINESSES OF THE COMPANIES
Guy F. Atkinson Company (herein called Atkinson) is
a corporation engaged as a contractor in the commercial
construction industry. Its principal office and place of busi-
ness is located in south San Francisco, California. In the
course and conduct of its business operations, the employer
annually purchases and receives materials valued in excess
of $50,000 directly from points outside various States, in-
cludmg Missouri, in which it is conducting its business.
At all times material herein, Atkinson has been engaged
in the performance of services as general contractor at the
Harry S. Truman Dam roject, Warsaw, Missouri (herein
called the project), under a contract calling for services
valued in excess of $1 million.
This employer is and at all times material herein has been
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the act.
Springfield Metal Buildings Company (herein called
Springfield), is a partnership engaged as a general contrac-
tor in the building and construction industry specializing in
the construction of prefabricated metal buildings. Its princi-
pal office and place of business is located in Springfield,
Missouri. In the course and conduct of its business opera-
tions, the employer annually purchases and receives mate-
rials valued in excess of $50,000 directly from points outside
the State of Missouri.
This employer is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11 THE RESPONDENT
The Respondent is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
At all times material herein, the following named persons
occupied positions set forth opposite their respective names
and have been agents of the Respondent acting on its behalf
within the meaning of Section 2(13) of the Act:
Robert Pfister Business Representative
Elmer Folsom Business Representative
Giro (Jerry) Landi Field or Job Steward
Grover Byrd Business Representative
III BACKGROUND
IRONWORKERS, LOCAL 10 717
The Union maintains its headquarters at Kansas City,
Missouri , where all of its principal officers including its
full-time business agent reside . Because the union's territori-
al jurisdiction is extensive , it also maintains a suboffice
located in Springfield , Missouri . While there is some dispute
in the fact that the union claims that Landi is not an agent
of the Respondent, it is clear that he operates as a job
steward, that he is not paid by the union, but that he assists
the union in implementing its hiring practices.
Atkinson has been engaged since December 1970 in the
performance of services as a general contractor at the Harry
S. Truman Dam project in Warsaw, Missouri. Before begin-
ning the actual construction work on the dam project Atkin-
son held a series of prejob conferences with various craft
unions in Sedalia , Missouri , early in December 1970.
Approximately on December 9, 1970, the Atkinson repre-
sentatives , including Robert Bowlby (the labor relations
manager for Atkinson), had a meeting with Robert Pfister,
the business representative for Local Union 10. The reason
for this meeting was to explore any problems which might
come up on the project concerning ironworkers and to give
the Union a rough estimate of the number of ironworkers
that Atkinson would be employing in the course of its con-
struction of the dam. There is no written formal collective-
bargaining agreement covering the wages and working con-
ditions of the ironworkers. Atkinson did sign a fringe
benefit agreement whereby it agreed to pay the prevailing
union rates and fringe benefits which were in effect in the
union 's jurisdictional area . Atkinson and the union also
arrived at a verbal agreement or understanding that Atkin-
son would secure all of its ironworkers through the union.
The arrangement reached between Atkinson and the Un-
ion, with relation to the employment of ironworkers, was
described by Bowlby as follows: "We had an understanding
that we would hire our men through the local union ...
Pfister said he did not know whether we would get all our
men out of the Kansas City or Springfield, Missouri offices
of the Union."
In the course of the cross-examination of Bowlby the
Trial Examiner asked the following question:
If I have heard the testimony correctly, there was never
a question whether or not, whether you hired through
the Iron Workers, it was a question of which local
would provide the men, is that correct?
To this question Bowlby answered "that is basically what
we talked about yes."
At the time when the Company began to recruit its
ironworkers the union business agent, Grover Byrd, told
Bowlby that if he needed men he should call Jerry Landi,
the area steward. Bowlby testified that "along about March,
Byrd was in touch with me as the result of a visit he made
to the job site and at this time he told me that rather than
to go through Jerry Landi when he needed men, he should
call Byrd directly at his office in Springfield, Missouri."
When Bowlby was asked on cross-examination by
Respondent's Counsel whether he had been told at any time
by the Union that he would have to go through the union
hiring hall, Bowlby answered that he' did not recall anyone
specifically saying that you must go through Local 10. He
said that' I think that that was a mutual agreement that at
least we thought we had with them."
Just as the initial hiring began , Grover Byrd visited the
job in late March and Atkinson gave him a verbal request
for men at that time and four men were involved . From that
Pi i oint on , Atkinson has hired all its men through the Spring-
eld local through Mr. Byrd.
Respondent attempted to have its standard form contract
received in evidence because it states something in article 1
to the effect that employees can be hired from any source
without discrimination by the Union . I did not permit this
document to be received because it was not signed by Atkin-
son and was therefor not binding on the Company. It is
clear from the record that both Atkinson and Local 10 in-
tended all hiring to be done through Local 10. As a matter
of fact no hiring was done except through the Union. In
addition , it should be pointed out that despite extensive
cross-examination by Respondent , and statements pointing
to the fact that under the general provisions of the-Union's
typical contract an employer is not limited to hire solely
through the Union, the fact remains that there was an oral
understanding mutually arrived at to hire men only through
the Union . No union representative ever told the Company
that it could hire its employees any place it wanted without
regard to their membership in Local 10.
The superintendent of the ironworkers for Atkinson at
the Truman dam is Howard Fowler . In the middle of Feb-
ruary 1971 Fowler had a conversation with Burton on the
jobsite. Burton came to see Fowler about getting a job.
Burton asked Fowler to write a letter to the union hall and
requested that the Union recommend him for a job . Fowler
said he could not write such a letter . On another occasion
shortly after the first visit Burton again came on the jobsite
again asking for a job.
The superintendent for ironworkers in charge for Spring-
field, James Smith , testified that he hired an ironworker for
a job called LaCygne and was told by Robert Bell, who is
the manager for Springfield , that the man would have to be
a local man . The superintendent of the Springfield compa-
ny, Ralph Hammers , testified that he needed an ironworker
and he called Don Bellamy at his home . He knew Bellamy
from a previous job. Bellamy said he could only report on
the job if Byrd of Local 10 cleared him. He was unable to
get cleared and did not get the job although the Company
was willing to hire him.
The situation with respect to Springfield is quite similar
to that of the Atkinson Company . Here again Springfield
did not sign a contract with Local 10 . They did agree to pay
the union wage scale and fringe benefits which included
health and welfare payments . As a usual matter the normal
procedure was for the lob superintendents to call the general
superintendent , Mr. Purdy, and tell him the requirements
for ironworkers or for any other craft . Purdy would secure
these
Wh
en by calling the hall that has jurisdiction over the
craft.^When Bell testiied he was asked why it was that he
frequently used the union hiring hall to obtain ironworkers.
He answered "As far as our company is concerned, we are
strictly a union operation . We employ all union people and
when we are looking for any particular craft that is the
normal place to go ." Bell also stated that he believed that
a man needed to be cleared through the union hall in order
to obtain a job.
The second alleged discriminatee , Donald James Bella-
my, has been an ironworker for approximately 9 years. He
has never been a member of Local 10 . He stated that he is
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member of Ironworkers Local 408, at Amarillo, Texas.
Bellamy tried to get transferred to Local 10 but was told
they did not have any openings. Bellamy testified he went
to the union hall approximately twice a week over a 3- or
4-month period. What occurred in the union hall is almost
an exact duplicate of what took place in the union hall
described previously in relation to the Atkinson Company.
Bellamy testified he was told by his friend Smith who is a
supervisor at the Springfield job to clear with the hall and
after this was done he was told he could report to LaCygne
and go to work. Bellamy called Byrd and asked for clear-
ance for the LaCyyne job. Byrd said, "No, I have my men
sitting on a bench. He said, `As long as may men are sitting
on a bench you ain't workin in this Local. ' He also added,
"Why don't you take your obscenity) book back to Texas
where you belong." On or about June 23 Ralph Hammers
phoned Bellamy and told him he had a job at Willard,
Missouri, and Hammers wanted him to come to the job and
go to work. Once again Bellamy called the local and spoke
to Byrd. Byrd told Bellamy, "No he had men sitting on the
bench that was going out before I did, and if there was
anything left I could go."
Respondent called Jerry Landi as a witness . Landi is the
area ironworkers steward. He testified that he gets no pay
and he earns his living as an ironworker. Landi testified that
on the Atkinson job he was contacted by the Company who
requested ironworkers by name. He said the largest number
of men hired were requested by name. I was not impressed
with the demeanor of Landi. I got the distinct impression
that his testimony was the result of instructions he received
from his superiors in the Ironworkers' Union. I do not credit
his testimony.
Robert Pfister, union business agent, testified that the
largest majority of the hiring-90 percent-was done direct-
ly by the contractor and did not go throuthreethe union hall
at all. In brief Pfister said that there were usual meth-
ods by which men were hired: (1) The foreman on the job
calls the men he wants directly and they come out to work;
(Pfister said the Union does not object to this practice); (2)
the Company calls and asks for an employee by name, the
Union calls his name and sends him out on the job; and (3)
if no one is specified the job is called out through the win-
dow and the first man to request it gets the job.
definitely company policy to hire only men referred or
cleared by the union."
While the testimony of Company representatives was de-
nied by the Union' s witnesses I do not credit their denials.
Byrd testified that jobs are given out according to the order
in which men come to the window without regard to wheth-
er those who obtained thejobs were members of the Union,
the Local, or even were in fact ironworkers. This testimony
is inherently incredible. It is much more reasonable to ex-
pect that if a union and a nonunion man were vying for a
job, preference would be given to the union man as is stated
in Local 7, International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO (Waghorne-Brown
Company), supra.
Some of the representatives of the Union also testified
that 90 percent of the men who were hired by Springfield
were directly hired without any communication with the
Union. This testimony was contradicted by the Springfield
Company with the remark that for many years it had only
employed union men all over the country-this was settled
company polio and practice. I discredit the Union's cavali-
er attitude of feigned indifference as to whether or not the
Company hired union members.
The facts of the discrimination against both Burton and
Bellamy are too clear to warrant extended discussion. In
numerous visits to the hiring hall and telephone calls to
business agents of Local 10 neither man was ever referred
to a job. I also credit the testimony of both men that they
were each repeatedly told that they would not either be
referred or cleared by Local 10 until all local men had been
taken care of. The demeanor of Burton and Bellamy im-
pressed me with the fact that they testified truthfully. The
pat denials by Folsom, Byrd, and Pfister were unconvinc-
in l
ased on the substantial evidence in the record consid-
ered as a whole I find that Local 10 maintained exclusive
hiring halls and discriminated in its hiring practices against
both Burton and Bellamy and therefore violated Section
8(b)(1)(A) and (2) of the Act.
Upon the foregoing findings of fact and the entire record
in the case I make the following:
CONCLUSIONS OF LAW
Concluding Findings and Analysis
Substantively two elements must be proven before a
finding of violations of Section 8(b)(1) and (2) of the Act
can be made . The first question is whether or not Local 10
was operating an exclusive hiring hall.
I have creted the testimony of Bowlby of the Atkinson
Company that he understood he could only hire employees
either referred by the Union or cleared by the Union. Sim-
ilarly, I credit the testimony of Smith , Hammers , and Bell,
representatives of Springfield, that it was the Company's
invariable practice on this job and all others in the U.S. to
hire only union members cleared or referred by the Union.
In closely analagous facts in Local 7, International Associ-
ation of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (Waghorne-Brown Company), 144 NLRB 925, the
Board found an exclusive hiring system based primarily on
the testimony of the employer' s representatives that "it was
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Guy F. Atkinson Company and Springfield Metal
Buildings Company are both employers within the meaning
of Section 2(2) of the Act and are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By discriminating against both William H. Burton and
Donald James Bellamy, Respondent engaged in and is en-
gaging in unfair labor practices proscribed by Section
8(b)(1(A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in unfair
labor practices proscribed by Section 8(b)(l)(A) and (2) of
IRONWORKERS , LOCAL 10 719
the Act , it will be recommended that Respondent cease and
desist from such conduct and take certain affirmative action
found necessary to effectuate the policies of the Act.
The Union discriminated against Burton and Bellamy by
refusing to refer them to jobs within the jurisdictional area
covered by Local 10 . It will therefore be recommended that
Respondent be required to make Burton and Bellamy whole
for any loss of earnings they suffered by reason of the
discrimination practiced against them , by paying them a
sum of money equal to the wages they would have earned
on and after February 1971 , absent such discrimination, less
their net earnings elsewhere during said period. Such loss of
earnings , with interest thereon at the rate of 6 percent per
annum, shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]