James Switalski

National Labor Relations Board - Board Decisions

Mar 29, 1957

117 N.L.R.B. 914 (N.L.R.B. 1957)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Switalski , Special Representative of United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada'AFL-CIO, in, charge
of Local Union No . 799; Plumbers and Fitters Local Union
No. 799 ; United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States
and Canada , AFL-CIO [J. F. Pritchard & Co.] ; Journeymen
Pipefitters Local Union No. 392, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , AFL-CIO [Carrier
Corporation ] and William C. Lester. Case No. 9-CB-255.
March 29, 1957
DECISION AND ORDER
On June 5, 1956, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding in which he found
that (1) the Respondent Local 392 had engaged in and was engaging
in certain unfair labor practices, and (2) the General Counsel had not
established, by a preponderance of the evidence, that any of the other
named Respondents had engaged in unlawful conduct attributed to
each by the complaint. He recommended, accordingly, that Local 392
and its agents cease and desist from the unfair labor practices found
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. He recommended, further, that the remain-
ing allegations of the complaint be dismissed. Thereafter, Respond-
ent Local 392 filed exceptions to so much of the Intermediate Report as
sustained the complaint against it, together with a supporting brief.
The General Counsel filed exceptions to so much of the Intermediate
Report as dismissed the complaint against Local 799 and its agents,
together with a supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing, and to the extent that the exceptions filed by the parties
seek review, finds that no prejudicial error was committed. Such rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions, modifications, and
explications.
1. The violations committed by Local 392
The Trial Examiner has found that Local 392 violated Section 8
(b) (2) and (1) (A) of the Act by: (1) • Causing Carrier Corpora-
' The General Counsel did not except to the dismissal of that part of the complaint
charging James Switalski with the commission of unfair labor practices
117 NLRB No. 133.
JAMES SWITALSKI 915
tion z to discharge William Lester for discriminatory reasons; and (2)
maintaining and enforcing an unlawful oral agreement or under-
standing with Carrier with respect to the hire of pipefitter-welder em-
ployees. For the reasons indicated below, we would sustain the find-
ings of illegality premised on the discharge of Lester, but we would
not adopt findings of illegality based upon contracts or understand-
ings between Carrier and Local 392.
The record- shows, and we find, as did the Trial Examiner, that :
(1) Carrier effected the abrupt dismissal of Lester on May 10, 1954,
at the request of agents of Local 392; and (2) Local 392's agents re-
quested this action because such agents became advised at that time that
Lester was on the "detrimental" list of the U. A3 and could not, there-
fore, acquire membership in any U. A. local under the conditions uni-
formly available to other applicants 4 In so holding, we have con-
sidered Local 392's claim that, in light of the conceded fact that Lester
failed to tender "periodic" dues and initiation fees to Local 392 (or to
any other U. A. local), an agreement between it and Carrier containing
a standard 30-day union-shop provision constitutes a defense to the
discharge.' It is implicit in our affirmative violation findings, however,
that as Lester was in fact discharged for reasons unrelated to any
validly enforceable union-security contract provision, the contract as-
serted here as a defense has no significance to the violation issue. This
is so evens if we assume, contrary to the express or implied findings, of
2 Herein referred to as Carrier
a The term "U. A " has reference to United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,
the parent organization of the Respondent Local 392 and Local 799
4 As of the dates here material , U A regulations and rulings binding upon local
affiliates required that Lester pay an initial "initiation " fee of $2 , 850 as a condition of
acquiring restoration of membership rights from which he was totally debarred so long
as he remained on the detrimental list As noted in the Intermediate Report, the U. A.
subsequently ruled, in July 1954, that the $2,850 fee be reduced to $150 ( the maximum
initiation fee which any other U. A. member -applicants were required to pay ) for Lester
and the other " insurgents" similarly placed on the detrimental list with Lester.
5 As appears more fully in the Intermediate Report, Local 392 defended the complaint
principally on the ground that it had not, in fact , "caused" Carrier to discharge Lester.
But it claimed , as an alternative ground of defense , that since Lester had not offered to,
pay dues and fees in an amount equal to those uniformly r equired by Local 392 of all,
applicants, the union -shop pr̀ovrsions of a•contract dated rn'June 1953 precludedfindings
of unlawful causation , in any event
Unlike the " closed shop" provision of the national agreement between Carrier and
the U. A , to which the Trial Examiner makes reference, the union-shop provision of the
June 1953 agreement , to which Local 392 makes reference , requires "membership in the
Union" as a condition of employment "on the 30th day following the beginning of
employment or the 30th day following the effective date of agreement, whichever is
later " Said contract also provides specifically that the employer parties thereto must
dismiss employees upon the Union 's request , where such employees "fail to tend to the
Union the periodical dues and initiation tees uniformly required-as a condition of acquir-
ing'or retamrng,membershrp "
In raising the above-described contract as a defense to Lester's discharge, Local 392
did not, and does not now, claim that it would have admitted Lester to membership had
he made the tender of dues and fees to it It suggests, however, that had Lester made
the tender , it would have treated him as if lie were a member for purposes of his right
to remain on the job with Carrier For seasons stated below we find no merit in this
argument.
916 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
the Trial Examiner , both that the contract relied ,upon, by 'Local .392
in,fact defined its relations with Carrier and that such contract was,
in all respects , in harmony with the provisions of the Act, For the •cir-
cumstances' established by the record, as they relate to L• ester' s situa-
tion, support the view that Lester was excused, by reason of futility,
from making,the dues and fees tenders Local 392 might legally have re-
quired of him under such contracts More specifically, we find•,that,
under the only intraunion regulations, and rulings known to Lester, he
reasonably entertained the 'belief that any tender by him of dues and
fees , in an amount not inclusive of the $2,850 fee above mentioned
would have been futile for purposes of acquiring any membership,
benefits. We find further that Local 392's agents, though- undoubtedly
aware of Lester's belief, not only, did nothing to dissipate it, but indeed
acted in a manner confirmatory of it. We hold, accordingly, that by
causing Carrier Corporation to discharge William Lester on May 10,,
1954, and thereafter refusing to reinstate him because of his detrimental
status, Local 392 has engaged in and is engaging-in violations of Sec-,,
tion 8 (b) (2) and 8 (b) (1) .(A) of the Act.
.We, do not adopt the Trial Examiner's findings that Local 392' en
tered._into, maintained, and enforced an understanding or agreement,
with Carrier, "conditioning the hiring of pipefitters-welders at the,
Pogue job .. . upon membership in or clearance from the Respondent;
Union."„ The, complaint did not'allege illegality, with respect to any
contract or understanding which Local 392 may have had with- Carrier
and, to the extent that the union-security arrangements of Carrier
and Local 392 Were litigated, the evidence does not permit definitive de-
termination of,what such arrangements were. Thus, Local 392 was not
a signatory to the national agreement between the U. A. and Carrier, to
*hicli the Trial Examiner makes reference. Indeed, Local 392 ad-
duced evidence tending to indicate that it insisted upon Carrier's con-
foi'niing to the contract conditions negotiated by it with a local con-
tractors' association in June 1953. The legality of the latter contract,
tivhich we have assumed solely for purposes of considering Local 392's
assertion of the same as a defense to the discharge herein, was not fully
litigated pursuant to such a charge.7 Because of this state of the
record and of the pleadings, we do not pass upon the Trial Examiner's
findings as to the illegality of Local 392's hiring arrangements, or con-
tracts with Carrier.
°Cf ^Uvn phy's Motor Freight , Inc. 113 NLRB 524, 525 , and cases cited at footnote 3
therein This case was recently enforced in full by the United States Court of Appeals'
for'the Third Circuit in a decision appealing at 231 F 2d 054'' See also N L R 'B v.
International Association of _41achinists , Local 50), 203 F 2d 173 (C A 9)
7 This contract contained, in addition to the union-shop provisions referred to above,
certain work assignment clauses However , as these clauses were not the subject of litiga-
tion , we have not considered , and do not pass upon , their legal effect
JAMES SWITALSKI 91`7'
2. The alleged violations -'by Local ' 799,
As appears more fully from the Intermediate Report, William
Lester returned to Huntington, West Virginia, after he-was discharged
by Carrier. He there visited the offices of-Local_799,for:the purpose;
inter alia, of obtaining referral or clearance to_ the Pritchard Com-,
pany for a job at the latter's Ceredo project. Local 799 denied Lester_
the requested referral because of his detrimental or nonmember status,s
and the complaint alleges that -by this action, Local-799 unlawfully
caused Pritchard to refuse to hire Lester.
The Trial Examiner found the evidence- insufficient to sustain ;the,
alleged violation, and the General Counsel takes exception to this,
ultimate finding. We have fully considered these exceptions on the;
basis' of an independent review of the record. While we do not adopt
all of the subsidiary determinations made by the Trial Examiner,9'we'
agree, nevertheless, with his ultimate view that the General Counsel
has failed to establish, by a preponderance of the evidence, the exist-;
ence of the kind of hiring agreement or practice under which the
mere refusal-of a union, to refer or to clear a nonmember for employ-
ment comes within the purview of Section,8 (b) (2) and 8 (b) -(1),
(A) of the Act. We shall, therefore, dismiss so much of the complaint
as alleges that Local 799 caused Pritchard to refuse to hire-Lester'
for available work.
The General Counsel also suggests, in his exceptions, that Local
799 be held jointly responsible with Local 392 for the effects of
Lester's discriminatory discharge from the Carrier project ,on May
10, 1954. It is his theory that Local 799's liability stems from its
having notified Local 392 of Lester's detrimental status and of his
consequent inadmissibility to membership in any local union under
the existing intraunion constitutional and regulatory scheme. As it
is clear that Local 799 had no control over Local 392's actions and/or
its relationships with Carrier or any other employer, we find no merit'
to the General Counsel's position in this respect.
ORDER -
Upon the basis of the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, the National Labor Rela-
8 We are not concerned with the merits of the intraunion actions which affected Lester 's
membership rights ' For this reason, and because the merits of these intraunion actions
were'not in fact litigated, we find merit to the General Counsel's objections to so much of
the Intermediate Report as tends to suggest that certain of the insurgents actually partiei';,
pated in the actions complained of by Local 799 as being detrimental to the U A.'s interest.
9 Indeed, our independent examination of the record reveals that a number of state-
ments made by the Trial Examiner in narrating evidence as to certain subsidiary facts do ,
not accord with the record. These errors neither affect' his credibility resolutions nor
otherwise 'require a diffeient ultimate result.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board hereby orders that Respondent Local 392, its officers,
agents, successors , and assigns, shall :
A. Cease and desist from :
1. Causing or attempting to cause Carrier Corporation, a Delaware
corporation , and/or its officers , agents, successors , and assigns to dis-
criminate against employees in violation of Section 8 (a) (3) of the
Act.
2. In any like or related manner restraining or coercing the em-
ployees of Carrier Corporation, or its successors or assigns, in the
exercise of the rights guaranteed in Section 7 of the Act, except to
the extent that such right 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.
B. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
1. Make whole William C. Lester for any loss of pay he may have
suffered 10 from May 10, 1954 (the date of his discharge) to the date
of Carrier Corporation's completion of its construction project for
H. S. Pogue Company and/or for Union Central Life Insurance Com-
pany, at Cincinnati, Ohio, whichever is later."
2. Post at its offices in Cincinnati, Ohio, copies of the notice attached
hereto marked "Appendix A." 12 Copies of said notice, to be fur-
nished by the Regional Director for the Ninth Region, shall, after
being duly signed by representatives of Respondent Local 392, be
posted immediately upon receipt thereof and maintained for a period
of sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
3. Mail to the Regional Director for the Ninth Region copies of
the notice attached hereto marked "Appendix A," duly signed by the
proper and qualified officers, for posting by Carrier Corporation, it
being willing, in places where it customarily posts notices to employ-
ees. Copies of said notices, to be furnished by the Regional Director
for the Ninth Region, shall, after being signed as provided for above,
be forthwith returned to the Regional Director for posting.
10 Such losses shall be computed in accordance with the formula set forth in F. W.
Woolworth Co., 90 NLRB 289.
n In accord with the General Counsel's request, we have expanded so much of the
recommended order of the Trial Examiner as refers to the terminal date of Respondent'
Local 392's liability , so as to encompass the completion date of Carrier 's Union Central
Life Insurance Co. project as well. For we are satisfied , on the record before us, that
Carrier offered all the welders it employed on the Pogue project the opportunity to
transfer to its Union Central project when their services at the former were no longer
required . We are also satisfied that Lester was able to perform the kind of welding work
required on the Union Central project
"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 -Unsted,States Court of Appeals , Enforcing an Order."
JAMES SWITALSKI 919
4. Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint against Local 799 and
James Switalski be, and the same hereby is , dismissed.
APPENDIX A
NOTICE To ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF
THE UNITED STATES AND CANADA, AFL-CIO, LOCAL 392
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Carrier Corporation, a
Delaware corporation , and/or its officers , agents, successors, or
assigns to discriminate against employees in violation of Section
8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of the aforesaid Company in the exercise of the rights
guaranteed to them by Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring mem-
bership in the union as a condition of employment, as authorized
by Section 8 (a) (3) of the Act.
WE WILL make whole William C. Lester for any loss of pay he
may have suffered as a result of the discrimination against him.
UNITED ASSOCIATION OF JOURNEYMEN'
AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-
CIO, LOCAL 392,
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 TIIE CASE
Upon a charge duly filed on October 18 , 1954, by William C. Lester, the General
Counsel of the National Labor Relations Board , herein respectively called the Gen-
eral Counsel and the Board , by the Regional Director for the Ninth Region ( Cincin-
nati, Ohio), issued his complaint on November 4, 1955, against James Switalski, Spe-
cial Representative of the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, in
charge of Local Union No. 799 ; Plumbers and Fitters Local Union No. 799 , United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In-
920, DECISIONS OF NATIONAL LABOR,^RELATIONS BOARD
dustry of the United States and Canada, AFL-CIO (J. F. Pritchard & Co.); Jptirney-
men Pipe Fitters Local Union No. 392, United Association of- Journeymen and
Apprentices of the-Plumbing and Pipe Fitting Industry of the United States and'
Canada, AFL-CIO (Carrier Corporation) I alleging ,that the Respondents had en-,
gaged in and were 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, 61 Stat. 136, as amended, herein called the Act.
Copies of the charge and complaint, together with notice of hearing therein, were
duly served upon all the parties.
With respect to the unfair labor practices, the complaint alleged in substance that:
On or about May 10, 1954, Respondent Local 392, by and through its Business Agent
James Maher, attempted to cause and did cause Carrier to refuse to reinstate William'
C: Lester, -for the reason that he was not-a member in good standing of Respondent
Local 392 and/or Respondent Local 799, thereby causing-Carrier to encourage mem-
bership in Respondent 392 and Respondent 799, in violation of Section 8 (a) (3) of
the Act; (2) since on or about May 10,-1954, and at all times thereafter, Respondent
Agent Switalski and Respondent 799, by its Business Agent and President James, 1).
Chapman, ar d'''its' Secretary-Treasurer N. T. Henderson, `attempted'to cause, caused,
and is now causing Pritchard to refuse to hire William C. Lester because he:wasi
not a member in good standing of Respondent 799, and could not obtain clearance
or referral from Respondent 799 for an available job with Pritchard, thereby causing
Pritchard to encourage membership in Respondent 799, in violation of Section 8
(a) (3) of the Act; and (3) by' reason of the acts set'forth immediately above, and
by each of them, Respondents Local 392 and Local 799 and Respondent Agent
Switalski have engaged in and are now engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A) and (b) (2) of the Act. '
On or about November 28, 1955, Respondent Agent Switalski filed an answer in
which he admitted certain jurisdictional facts but denied the commission of any of
the alleged unfair labor practices. On or about November 17, 1955, Respondent
Local 799 filed a similar answer. On or about November 14, 1955, Respondent
Local 392 filed an answer which in all respects was similar to the answer filed by
Respondent Agent and Respondent Local 799. In other words aside from the
admission of certain jurisdictional matters the answers-of all Respondents were in
effect general denials of each and every allegation in the complaint.
- On or about January 5, 1956, Respondent filed a "Motion for More Definite
Statement" or in Board parlance a "Bill of Particulars" as regards certain allegations
in the complaint. The General Counsel served his Response to said Motion to all
parties on or about January 5, 1956.
Pursuant to,due notice, a hearing was held on January 17, 18, 19, 24, and 25,
1956, at Cincinnati, Ohio, before the duly designated Trial Examiner. The Gen-
eral Counsel and the Respondents were represented by counsel and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
pertinent evidence, to argue orally at the conclusion of the hearing (which all
counsel waived) and to file briefs or proposed findings of fact and conclusions of
law, or both, with the Trial Examiner. Well considered briefs were received from
counsel for all parties on or about March 1, 1956. They have been carefully con-
sidered by the Trial Examiner.
During the course of the hearing, Respondents' counsel moved to dismiss the
complaint at the close of the General Counsel's case-in-chief. The Trial Examiner
denied their motions without prejudice to renew them at the close of the hearing,
which they did. The Trial Examiner reserved ruling thereon. The motions of all
Respondents are disposed of in accordance with the findings, conclusions,. and
recommendations set forth below.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT -
1. THE COMMERCE FACTS
'J. F. Pritchard & Co., a Missouri corporation, has its offices and principal, place
of business in Kansas City, Missouri, where it is now and at all times material herein"
,'The aforesaid individuals, organizations, and named business entities shall be referred
to herein as follows' James Switalski as Switalski, United Association et at as U. A ;
Local' 799 and Local 392 as such;' J. F Pritchard & Co. as Pritchard ; and Carrier
Corporation as Carrier
'JAMES SWITALSKI 921
has been engaged in engineering and construction in' various States of the United
States, including the construction of a gas,compressor station for the United Gas
Fuel Company at Ceredo, West' Virginia, the location involved herein. ,
During the year-1954, Pritchard, in the course and conduct of its business described
immediately above, received in excess of $300,000 pursuant to Government con-
tracts for services provided which directly related to national defense.
During the year 1954, Pritchard received in excess of $1,000,000 for services per-
formed at the Ceredo, West Virginia, location described above.
The parties have stipulated and the Trial Examiner finds that Pritchard is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act
Carrier Corporation (herein called Carrier), is a Delaware corporation engaged
in the manufacture, sale, and distribution of air conditioning and refrigeration equip-
-- ment, in the various States of the United States, including Cincinnati, Ohio, the
location involved herein , • - - • - - ' -
During the year 1954, Carrier, in the course and conduct of its business described
above, received in excess -of $1,000;000'for work performed outside the State of
-Delaware. '
The parties have stipulated and the Trial Examiner finds that Carrier is engaged
in commerce within-the meansing of Section 2 (6) and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated at the hearing herein and the Trial Examiner now finds that
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO, and Respondent Local
799, and Respondent Local 392 are now and each of them has been at all times
material herein, a labor organization within the meaning of Section 2 (5) of the Act.
.IH. THE ALLEGED UNFAIR ,LABOR PRACTICES
'A. The alleged violation of Section 8 (b) (1) (A) and 8 (b) (2) by Local 392 in
the employment relationship between Lester and Carrier
1. Background and pertinent facts .
No proper understanding of the issue involved herein could be had without refer-
•ence.to certain incidents that occurred in the latter part of 1953.
The record shows that on August 11, 1953, an :.Order of Suspension" was issued
by the then Acting General President Peter T. Shuman of the U. A. against Pipefitters
.:Local Union 521 , of Huntington, West, Virginia, of- which more anon. Suffice it to
say at this stage of the report that Local 521 was the U. A. local in Huntington, West
Virginia, prior to appearance of Local 799 on the scene, of which likewise more anon.
The- "Order of Suspension" was issued because Local 521 had refused to carry out
certain requests of the general president; and to comply with certain provisions.of
the U. A. constitution. As the iTrial Examiner sees it the situation in Local 521 went
from bad to worse, so to speak, until on November 23, 1953, General President Mar-
tin P Durkin issued an order to show cause within 15 days from November 23, 1953,
why, the order of suspension had not been complied with and why the charter of
Local 521 should not be revoked as provided by section 128 of the constitution of
the U. A. The record further indicates that Local 521 ignored General President
Durkin's order to show cause and as a result he issued an "Order of Revocation"-of
charter of Local Union 521, Huntington, West Virginia, on•or about December 8,
1953, effective as of December 11, 1953.'
The record further shows that while Local 521 was involved in the difficulties re-
ferred to above, Acting General President Peter Shuman sent Respondent Switalski
to Huntington, West Virginia, to investigate the situation. The record is not clear
as to the exact date of his assignment.
Insofar as the issues herein are concerned, an important incident occurred some-
time in October 1953, insofar as Charging Party Lester is concerned. , On the date
in.question some 38 members of Local 521 went to Local Union 52l's hall and took
-physical possession of it by force. In so doing they ran the business agent, Carr, out
of the hall, as well ,as the office help. They then proceeded to take over the records
of the Local and to raise "cam" in general, so to speak. Moreover, the record indi-
cates that some of the invaders cracked the office safe and made off with whatever
cash was on hand-at the time. They continued in possession of the office of Local
521-for a period of 5.weeks., How they were eventually dislodged is not shown in
the record. Nor does the record disclose any intelligent information as to why they
i :seized the office:invthe first Place. From what the Trial Examiner gleans from the
record there was general dissatisfaction among the members of the Local at that time,
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in addition there was little construction work in the area which of course would
indicate that many members of the Local were out of work. Insofar as,the issues
herein are concerned, it matters but little what the motive was of the 38 who seized
the hall. Suffice it to say that the only important factor that flowed from the inci-
dent insofar as the issues herein are concerned is the fact that the 38 were dubbed
"insurgents" by the members of Local 799, and after a trial before the executive board
of Local 799, were placed on the "Detrimental List" as provided in section 152 of
IT. A.'s constitution. In addition certain other disciplinary action was recommended
to the U. A.'s executive board of which more anon below. It is the latter and 'the
placing of the 38 on the "Detrimental List" that have an important bearing on the
issues herein.
As the Trial Examiner interprets the record, it was sometime during the hectic
times described above that Respondent Switalski was ordered to Huntington to in-
vestigate the situation by Acting General President of the U. A. Peter Shuman.
Though the order revoking Local 521's charter sets forth December 11, 1953, as
the effective date, the record also shows that insofar as the rank-and-file membership
was concerned the date was either December 7 or 8, 1953. In any event its charter
was definitely revoked as of December 11, 1953, and at all times material herein.
The record further indicates that with the revocation of Local 521's charter
its members and those of other locals of the U. A. had no representation in the
Huntington area. Faced with this situation a group of former members of Local
521 started a movement to secure a charter for a new local. They were assisted
in their efforts in this regard by Respondent Switalski. As a result, the U. A. issued
a charter for a new local, designated as Local 799, one of the Respondents herein.
On the night of January 3, 1953, Respondent Switalski met with the group who were
interested in forming a new local and presented to them their charter as Local 799.
Respondent Switalski presided at this meeting and after an election of a full slate
of officers including an executive board, turned the affairs of Local 799 over to those
selected by the body to handle its affairs, and it thus started out as an autonomous
local of the U. A. According to the credible testimony of Respondent Switalski,
he then stepped out of the picture insofar as local problems of Local 799 were con-
cerned. In passing, the Trial Examiner desires to point out that at about this time
Respondent Switadski's territory was expanded by General President Durkin to include
the States of West Virginia, Virginia, and a section of the northern part of North
Carolina. In all he now had approximately 25 locals to service. He further testified
in substance that as a result of the expansion of his territory he officially visited Local
799 only 6 or 7 times during 1954. The importance of this testimony will be apparent
below.
On January 4, 1954, the offices of Local 799 were opened and several of the mem-
bers and others who had been members of Local 521 presented themselves to the
secretary-treasurer, N. T. Henderson, and tendered their initiation fees and dues, in
the amount of $5.25, which included a $3 initiation fee and $2.25 dues for the month
of January 1954. The record indicates that the $2.25 dues actually kept a member
in good standing with the local for 3 months. The importance of this provision will
likewise be apparent below. As the Trial Examiner sees it, after the members and
prospective members paid their $5.25 they still had to be "obligated" into Respondent
Local 799, and thus accepted into full membership before they were entitled to any
of the benefits of the local in the borders of its geographical jurisdiction.
As the Trial Examiner understands the record, Lester and the other so-called "in-
surgents" were not received into full membership at this time because charges were
pending against them for their participation in the physical seizing of the premises
and property of Local 521 in October 1953, which has been briefly referred to above.
As a result of these charges Lester and the others involved were' given a hearing or a
"trial" before the executive board of Respondent Local 799. A summation of the
ultimate findings of the executive board follows below.
On January 28, 1954, the executive board of Respondent Local 799 held a special
meeting and considered the status of the "insurgent" group. The minutes of that
meeting are set forth below:
LOCAL UNION 799 CITY Huntington STATE W. Va., DATE Jan. 28, 1954
Motion made by Morgan Mattohc, and seconded by George Wilks.
Motion was carried Unanimous.
SPECIAL MEETING OF EXECUTIVE BOARD:
The Executive Board of Local Union No. 799 recommends that the men
whose names appear on the attached list be subject to the following recom-
mendations.
1. Their applications be refused in Local Union No. 799 or expelled from
same.
JAMES SWITALSKI 923
2. To be placed on the United Association detrimental list.
3. That an Initiation Fee of $5,000.00 be imposed.
4. Never be permitted to hold office in the United Association, or be permitted
to act or serve for any United Association Local Union, or participate in the
Labor Movement in general.
5. Never be permitted to supervise men in the United Association.
(Signed ) GEO. WILKS,
JIM MOORE,
MORGAN A . MATrox,
ERSKINE YATES,
J. L. DAVIS, Chairman.
On Friday , January 29, 1954, the executive board's recommendations were con-
sidered and accepted by the ". . . Body of Local Union No. 799... " There-
after on February 4; 1954 , the action of Respondent Local 799 and its executive board
was submitted in the following letter to Martin Durkin, General President of the
U. A. for his consideration:
799 HUNTINGTON , W. VA., Feb. 4, 1954.
MARTIN P . DURKIN, Ge. Pres.,
The Ring Building,
1200 18th St. N. W.,
Washington 6, D. C.
DEAR SIR AND BROTHER: I am enclosing a copy of the Minutes of a special
meeting of the Executive Board of Local Union No. 799, held on Thursday,
January 28, 1954. These minutes were read before the Body of Local Union
No. 799 on Friday, January 29, 1954.
It was regularly moved and seconded to accept and concur in the Executive
Board's recommendations.
A standing vote was asked for and the motion was carried with only one
dissenting vote.
We therefor, are sending you a copy of these Minutes and a list of men to
present to the General Counsel Executive Board for their approval.
All of the men listed either helped to seize the Union Offices here on October
26, 1953, or helped hold it after seizure and in direct violation of your orders,
refused to give up possession of same.
With Kindest regards, I remain
Fraternally yours,
N. T. HENDERSON,
Fin. Sec.-Treas., Local Union No. 799.
William C . Lester, the charging party herein , was named by the executive board
as one of those guilty of the conduct described above.
On April 1 , 1954, Edward J. Hillock , general secretary-treasurer of the U. A., wrote
Respondent Local 799 in regard to the insurgents , and set forth therein the U. A.'s
position . An excerpt from this letter follows.
MR. N. T. HENDERSON,
F. S.-T., L. U. No. 799,
11131/2 Third Avenue,
Huntington , West Virginia.
DEAR SIR AND BROTHER : This will notify your Local Union in regard to the
charges preferred against thirty-six former members of expelled Local Union 521,
Huntington , West Virginia , whose names are listed below, and your recom-
mendations for penalties against them , as follows:
1. Their applications be refused in Local ,Union No. 799.
2. To be placed on the United Association detrimental list.
3. That an initiation fee of $5 ,000 be imposed.
4. Never be permitted to hold office in the United Association , or be per-
mitted to act or serve for any United Association Local Union , or participate
in the Labor Movement in general.
5. Never be permitted to supervise men in the United Association.
that the General Executive Board has approved of the above recommendations
with the following exceptions: "that a raised initiation fee of $2,825 instead of
$5,000 be placed on these former members ," and has disapproved "that they
never be permitted to supervise men in the United Association."
:924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There then follow the names of the so-called insurgents including that of the
Charging Party herein , William C. Lester. For reasons which will be apparent
.below the list also includes the names of L. H . Black and Patrick C . Hamlin.
According to the credible testimony of George Wilks, a witness called' on be-
half of the General Counsel and a member of the executive board of Respondent
Local 799 from January 3 to July 1954 , several of the "insurgents " appealed to
the executive board to have their initiation fees reduced from the $2,825 set by
,the U. A. Their appeals were recognized and given careful consideration. On
June 12, 1954 , the executive board met and recommended to the body of Re-
spondent Local 799 that certain of the "insurgents " be taken off the "detrimental
list" and that their "initiation fee" be lowered from $2,825 to $150 Included in
the list approved by the executive board were William C. Lester ,, the Charging
Party herein , Patrick C . Hamlin, and L. H. Black. The recommendation of the
executive board was approved by the body of Respondent Local 799 at a regular
meeting on June 11 , 1954. On June 12, 1954, Carl Johnson, recording secretary of
Respondent Local 799, 1 wrote a letter to Edward J. Hillock, general secretary-
treasurer of the U. A., in which he set forth the action taken by Respondent Local
799 as regarding certain of the insurgents . The general executive board of the
U A. approved the action of Respondent Local 799 as to certain of the insurgents
on July 20 , 1954. Od July 23, 1954, the Charging Party herein , William C.
Lester, L. H Black, and Patrick Hamlin paid the $150 "raised initiation" fee to
Respondent Local 799 Thereafter on August 6, 1954, the above-named "insurgents"
were given their obligations to Respondent Local 799, and were thus automatically
removed from the "detrimental list."
Since the record indicates that a member of a local of the U. A. who has been
placed on the "detrimental list" is seriously handicapped in securing a job in his
craft , the Trial Examiner feels that an excerpt from the U. A .'s constitution which
pertains to this subject matter should be inserted herein Consequently it follows
below:
SEc. 157. Secretaries of Local Unions shall report anyone who is working
detrimental to the U. A. in their locality to the General Secretary -Treasurer
and he in turn shall enter offending party 's name on a record book , said book
shall be known as the Detrimental Book , and before any applicant is admitted
to any Local , the Secretary of Local where admittance is asked shall first
inquire if applicant 's name appears on same.
If applicant 's name should be entered on record book he shall not be ad-
mitted to any Local until his name is ordered stricken from this book by
the General Executive Board.
2. Lester's difficulties with Respondent Local 392
As indicated above, Lester paid $5.25 to Respondent Local 799 on January 4,
1954 The record , shows that of this sum, $3 represented initiation fees and $2 25
dues to Respondent Local 799. Regardless of the fact that the Local accepted
Lester's money, and that of others of the so-called insurgents , they were not obli-
gated into the Local because of charges pending against them because of their
participation in the Local 521 affair . As the Trial Examiner sees it, neither Lester
nor any of those so situated were officially on the "detrimental list" of Respondent
Local 799 and the U A. until the night of Friday, January 29 , 1954. Since Hen-
derson did not notify the general executive board of the U. A. until February 4,
1954 , it is reasonable to assume that that body did not receive notice of Respondent
Local 799's action until the morning of February 5, 1954. In the meantime Lester
left Huntington , West Virginia ; on or about February 1, 1954, and went to Cin-
cinnati , Ohio, to seek employment ." On February 3, 1954, Lester went to the
offices of Respondent Local 392 , and saw James P Maher, its business agent. He
asked Maher for a job as a welder and was given an assignment slip to a job at the
H & S Pogue Company . in Cincinnati , Ohio, being done by the Carrier Corporation.
'From what the Trial - Examiner gleans from the record Lester showed Maher his
-'receipt for -the $5.25, referred to above, and his "book" from the now defunct Local
521. Maher did not question his status nor was any mention _ iiiade at this time of
Lester's difficulties with Respondent Local 799. After obtaining _ the; assignment
s^shp-!from Maher, Lester reported to one "Blackie ". DeWeese,-Carrier's superin-
,.,(,.? Contrary, ,to: the General , Counsel's statement in his brief that Lester! K •as unable to
secure employment in-the Huntington -area during, January -1954 ' because '-he was-on the
"detrimental list," the Trial Examiner is convinced that there is no substantial evidence
in the record to support his position in this regard.
JAMES SWITALSKI ' 925'
tendent in_ charge of the Pogue job, who put him, to work as a pipefitter-welder,
whe're-he worked continuously until the morning of May . 10, 195.4. A summation
of ,the events of that day follow below.
-,.Sometime during the morning of May , 10„'1954, Gr Gering, . the steward on the
job' for Respondent Local 392, and also at the time classified by Carrier as a
foreman, came to Lester and asked to inspect his "book ," which the Trial Ex-
aminer understands to mean the book that a member of one of the U . A. locals is
required to carry with him at all times because recorded therein is a record of his
dues -payments and the like to the financial secretary of the member 's local. Upon
inspection , Gering found that Lester was in arrears in his dues to Respondent Local
799.. He queried Lester in this regard and at Lester 's request he called James
Chapman, business agent for Local 799, about Lester's status and that of the other
"insurgents" who had appealed from the action of the executive board of Respondent
Local 799, and the modified confirmation of !ts action in this regard by the executive
board of the U. A. According to Lester , Gering made the call and reported to
him that Chapman had advised him that he ( Lester ) was on the "detrimental list,"
and that "he didn't know if Lester would ever get cleared up or not." Singularly
enough Chapman , though called as a witness twice by counsel for Respondent
Local 799 and present at the hearing herein throughout the proceedings , was not
queried by counsel for any of the parties regarding this incident . In the circum-
stances the Trial Examiner credits Lester 's testimony regarding Gering's report to
him of the telephone call to Chapman . Moreover , none of the Respondents herein
chose to call Gering as a witness . Hence Lester 's testimony in this regard stands
uncontradicted and undenied in the record herein and is credited by the Trial
Examiner.
After talking with Chapman , Gering told Lester that "Jim Maher wanted me to
come over to the office , the business agent's office of Local 392 ." Lester did so.
What happened thereafter presents an enigma , in that there are three different ver-
sions of certain incidents that transpired in Maher's office-that of Lester, which
is'partially supported by Maher's testimony as to one important incident, and at odds
as to others , and that of DeWeese, superintendent for Carrier in charge of the Pogue
job. Resolution of credibility is always a difficult and thankless task, but not hope-
less, for resolved it must be and it is up to the trier of facts to do so. The Trial
Examiner saw the witnesses , he heard them testify, and has read and reread their
testimony . In addition he has considered at great length the interpretation of counsel
for the parties as expressed in their briefs in regard to this particular issue as well as
all, other conflicting testimony found in the record herein . In the circumstances the
Trial Examiner will resolve all such testimony as he sees it in the light of the
record as a whole , and let the chips fall where they may.
Lester further testified that after Gering talked to Chapman , he told him that
"Jim Maher wanted me to come over to the office , the business agent's office of Local
392." Lester complied with Gering's request and went over to see Maher. He
found Maher alone-in his office. Maher told him that his "Book" was delinquent
aiid.that he (Maher ) could not get involved with the U. A. and that "he was going
to have to let me go." He then asked Maher if he couldn't finish out the day on the
Pogue job and Maher told him no. At about this time the telephone rang, and
according to the testimony of both Lester and Maher , it was Superintendent DeWeese
calling Maher. It was this conversation that the Trial Examiner had reference to
in his comment concerning the resolution of the credibility of the witnesses Lester,
Maher, and DeWeese. Following is an excerpt from Lester's testimony in regard to
the contested telephone call:
Q. (By Mr. Williams.) Did you hear Mr. Maher speak into the phone?-
A. Yes, sir.
Q. What did you hear Mr. Maher say into the phone?
A. He said, "Blackie , I've got to abide by the constitution ." He called me
by my first name, he said , "Bill's book is delinquent and I can't get myself
involved with the UA."
TRIAL EXAMINER: You heard Mr. Maher say that?
The WITNESS : (Nods.)
Q. (By Mr: Williams. ) Where were you standing in relation to the phone?
A. I was standing-
Q. How close were you to the telephone during this conversation over the
- • phone?
A. Well, I would say I was standing just like this, the desk is like this
(indicating).
TRIAL EXAMINER : Let the record show the witness demonstrates a space I'd
say of about two feet from the phone.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (,By Mr. Williams.) Could you hear any part of the conversation by the,
person who was talking to Mr. Maher on the phone?
A. I could.
Q. And what did you hear? What did you hear come over the other end
of the phone?
A. I heard Mr. DeWeese-
Mr. BROWN: Just a moment. I object. It hasn't been established who was
speaking.
TRIAL EXAMINER: Well the testimony, Mr. Brown, is that Mr. Maher men-
tioned Mr. DeWeese's-4Blackie DeWeese or whatever his name was.
Mr. BROWN: He didn't say DeWeese, he said 'SBlackie," which is a common
nickname.
The WITNESS: He was referring to me-
TRIAL EXAMINER: I am going to overrule it. I will take it for what it is
worth.
Q. (By Mr. Williams.) What did you hear the person on the other end of
the phone say to Mr. Maher?
A. DeWeese asked Mr. Maher if he couldn't let me finish the Pogue job and
Maher said no, he had to abide by the constitution, he couldn't get hisself
involved with the UA.
TRIAL EXAMINER: That is what you heard?
The WITNESS: That's right. [Emphasis supplied.]
Maher's account of the events on May 10, 1954, was as follows:
Q. Now directing your attention to May 10, 1954, did Mr. Lester come to
your office on that day?
A. He did.
Q. And will you tell us what happened?
A. Well, Mr. Lester came to the office and while he was in the office I had
a phone call from-
Q. What did he come there for? What did he talk to you about?
A. He come there because the steward on the job made a book check and-
Q. What is a book check?
A. A book check is that a man is back in his dues. In other words it is just
standard procedure.
Q. How often is it done?
A. Well, it should be done once a month, but a lot of times it's not done and
everybody is asked to bring their book in on a certain date to show that they
are in good standing with the local Union.
Q. To show that their dues are paid, is that what you are referring to?
A. That their dues are paid.
Q. And what was your conversation with Mr. Lester?
A. My conversation with him was that I said, "Now, you'd better get straight-
ened up, it's for your own good, your livelihood, that you should get straight-
ened up."
Q. Were you referring to the dues?
A. I was referring to his straightening up whatever he had to do with the
Huntington local. [Emphasis supplied.]
Q. And how about Local 392?
A. Local 392, he didn't=l'mean; as far as paying dues-or anything like that,
he didn't offer to pay any.
Q. If he had paid his dues and initiation in 392 would that have established
his good standing in 392?
A. Yes.
Q. Did he make any offer to do so?
A. No.
Maher further testified that while Lester was in the office, DeWeese called him
about Lester. According to Maher, Lester was standing at one end of a desk and he
was seated at the opposite end, about 6 feet apart. Maher's account of this telephone
conversation with DeWeese was as follows:
Q. Now, what was your conversation with Mr. DeWeese?
A. I discussed with Mr. DeWeese the fact that Lester was back in his dues
and Lester was standing there all the time that the conversation went on, and
I told Mr. DeWeese, I even asked Blackie, I said, "Keep the man on, use him
for the duration," and Mr. DeWeese told me over the phone it didn't make any
difference whether lie was back in his dues with Local 392 or whether he was
JAMES SWITALSKI 927
back in his dues with Huntington, or if he was back in his dues with anyone, that
a layoff was coming on, that a layoff was going to come up, and he had to lay
the man off, that the job was being finished.
Q. Was Mr. Lester-was Mr. DeWeese talking in a loud or a soft voice, or a
loud or a normal voice?
A.. I'd say in a normal voice.
Q. Is his normal voice a loud one?
A. I wouldn't say so, no.
Q. Was Mr. Lester in a position to hear the words of Mr. DeWeese coming
over the telephone to you?
TRIAL EXAMINER: Well-
A. No, I don't think so.
TRIAL EXAMINER: -it would only be an opinion.
After finishing his conversation with DeWeese, Maher told Lester that he was
being laid off, and that he had better get straightened up with Local 799 in Hunting-
ton so that he could come back and get another job.
Maher further testified that he would not send a man out on a job unless he was
a member in good standing of either Local 392 or another local of the U. A.
DeWeese's version of the events of May 10, 1954, insofar as they pertain to Les-
ter's visit to Maher's office and the telephone call in question, is at variance with that
of both Lester and Maher. In the circumstances the Trial Examiner is convinced
that an excerpt from DeWeese's testimony in this regard should likewise be inserted
herein . It follows below:
Q. Will you tell us what that conversation was?
A. Well, the question arose as to his status, the steward on the job brought
to my attention that he had some difficulties with the local Union, and I sug-
gested that he go up and see Jim Maher about it.
Q. And why did you send him to Mr. Maher?
A. Well, in order for him to get straightened out so that he could work fur-
ther here in Cincinnati, so that he'd have a job and get hisself a place.
Q. You are speaking in terms of other employers besides Cartier
Corporation?
A. Besides Carrier, yes, sir.
Q. Well, did he go to see Mr. Maher?
A. Yes.
Q. Did you have any telephone conversation with Mr. Maher?
A. Yes, I did. Mr. Maher called me-
Q. On that day?
A. Yes, Mr. Maher called me that day.
Q. What was that conversation between yourself and Mr. Maher?
A. We'll, Mr. Maher asked me when he called me if I could use him for the
duration of the Pogue job and I told him that I couldn't use him because at that
time I was through with the type of work that Mr. Lester could do. It wouldn't
make any difference one way or the other what his status was with the local
union because I was laying him off. [Emphasis supplied.]
After careful consideration the Trial Examiner is inclined to and does in fact ac-
cept Lester's account regarding the above-mentioned telephone conversation, and
finds that DeWeese called Maher. He further finds that DeWeese sent Lester to see
Maher in the first instance with the object in mind of getting Lester straightened out
so that he could continue on the job at Pogue, and that the decision to lay off Lester,
on account of the nearness of the job's completion , was an "afterthought," of which
more anon below, and was influenced by Maher's statement to him that he (Maher)
did not want to get into trouble with the U. A. over the incident, particularly since
Lester was on the "detrimental list." The Trial Examiner further finds that it was
not Maher who suggested that Lester be kept on the Pogue job until it was completed
but that it was DeWeese, who did so. The Trial Examiner's reasoning in this regard
is predicated on several factors: (1) the inconsistency of the testimony of Maher and
DeWeese as to who called whom; (2) the fact that it was DeWeese who sent Lester
to see Maher in the first instance "to get himself straightened out"; (3) the fact that
DeWeese did not mention to Lester at the time he sent him to see Maher that a layoff
was pending; (4) the abruptness of the layoff; (5) the testimony of Maher that he
told Lester, "Now,- you'd better get straightened up, it's for your own good, your live-
lihood, that you should get straightened up," referring to Lester's predicament in
Local 799, which incidentally tends to support Lester's version of what Maher told
DeWeese in the telephone conversation, that Lester's status with Local 799 and being
928-, DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
on the "Detrimental List" were primary factors for his position in regard to Lester,
particularly, as they pertain-to the U., A. and its constitutional provision concerning
those who are named in the "Detrimental Book", and finally (6) the testimony of
Maher after he had, related his version of his,telephone conversation with DeWeese,
that he would, not send anyone "out on a job unless the applicant was either a mem-
ber of Local 392 or Local 799, and further it was not his practice to recommend `for
jobs' non-members of the Union."
A further and most compelling factor in the Trial Examiner's resolution of the
issue regarding the credibility of Maher and Lester likewise flows from their separate
accounts of Maher's telephone conversation with DeWeese. Maher testified, inter
alia, in substance on direct examination that Respondent Local 392 would have ac-
cepted Lester's initiation fee had he offered to do so, and that by so doing he
would have become a member in good standing . Later on in his testimony Maher
testified that he would not send Lester out on a job unless he (Lester) was a
member of either Respondent Local 392 or 799. Yet Maher, who was business
agent for Local ' 392, knew' or' should have known at the time he testified herein
that neither he as business agent nor any official or the body of Local 392 could
have` accepted Lester's application for membership by virtue of the provisions of
section 157 of the- U. A.'s constitution which was binding upon both Maher and
the body of Respondent Local 392. The pertinent paragraph of section 157 of
the U. A.'s constitution is set forth below:
If applicant's name should be-entered on record book he shall not be admitted
to any Local until his name is ordered stricken from this book [meaning the
"Detrimental Book"] by the General Executive Board. [Emphasis supplied.]
In the considered opinion of the Trial Examiner Maher was well aware not only of
the above constitutional provision , but likewise of the fact that the general executive
board of the U. A. had placed Lester's name on the "Detrimental List" sometime
in March 1954, and had notified Respondent Local 799 of its action in this regard
by letter dated April 1, 1954., It is inconceivable that either Maher as business
agent or the body of Respondent Local 392 would have had the temerity to flaunt
the above cited of any of the sections of the U. A.'s constitution , particularly the
pertinent section cited above. For this reason the Trial Examiner cannot credit
Maher's testimony in this regard.
The Trial Examiner has indicated above that he accepts Lester's account of what
was said in the telephone conversation between DeWeese and Maher on May 10,
1954 . A compelling factor in the resolution of this testimony is the same as set
forth immediately above regarding Maher's testimony concerning Lester's position
if he had tendered initiation fees and dues to Respondent Local 392. The Trial
Examiner has reference to Maher's testimony that he urged DeWeese to keep Lester
on the Pogue job until it was completed . Here again it is , inconceivable that
Maher as business agent of Local 392, would flaunt the U. A.'s constitutional pro-
vision in regard to those, such as Lester, who were on the U. A.'s "Detrimental
List." The, Trial Examiner simply cannot accept Maher's version ' of what was
said in the telephone conversation in question for the same reasons as set forth
immediately above.
Regarding Superintendent DeWeese and his testimony about what was said in the
telephone conversation at issue: As indicated above the Trial Examiner has
found that DeWeese called Maher. A compelling factor here in resolving the
credibility of the witnesses involved in this important facet of the case at hand
is best phrased in the form of a question : Why should DeWeese as superintendent
in charge of the Pogue job call Maher and tell him that Lester was to be laid off?
Again, Why should he have also found it necessary to inform Maher that Lester's
difficulties with the Respondents herein had nothing to do with his decision? Of
what particular concern was Lester's layoff to Maher, as long as it was made in the
usual course of business? These questions remain unanswered in the record. For
this reason and others cited above, the Trial Examiner cannot accept all of the,
testimony of either Maher or DeWeese regarding the telephone conversation at
issue herein . Nor does he accept Lester 's account of the conversation in toto
for the reason that he is not convinced that Lester was in a position to hear all
of DeWeese's, conversation with Maher. In the circumstances the Trial Examiner
finds that DeWeese called Maher .about Lester's status and that Maher told him that
Lester could not finish the Pogue job because he had to abide by the constitution
and could not get himself involved with the U. A. In the considered opinion
of the Trial Examiner , such a finding is fully justified in the light of the record
considered as a whole , the demeanor of the witnesses involved as observed by
JAMES SWITALSKI 929
the Trial Examiner, and the official position of the witnesses at the time they
testified herein.
There yet remains the' further question, Why was Lester hired in the first
instance, February 3, 1954, when he was placed on.the "Detrimental List" oniJanu-
ary 29, 1954, by Respondent Local 799? As the Trial Examiner sees it, Maher
had "no :official 'way of knowing of this action on the part of Local 799 because
Henderson, the secretary-treasurer of Local 799; did•not notify 'U. A.:of&cials of-the
Local's action until February 5,"11954, 2 days after Lester was sent to the-Carrier
job. at; the H "&.S "Pogue Co.; Cincinnati,. Ohio. The record is silent as to when
Maher first learned of Lester's status with Local 799, except that Gering informed
him on May 10, 1954, that Chapman had advised him in their telephone" conversa-
tion that Lester was on. the. "Detrimental List" and that he 'doubted that Lester
could ever get "straightened out."
There remains yet another factor and that' is the relationship between Carrier,
the U. A., and Respondent Local 392, at times material herein. As the Trial
Examiner sees it Respondent Local 392 had no written contract with Carrier,
though it did have an understanding, so to speak, that is set forth in what appears
to be a proposed contract.3 This document was drafted by Respondent Local 392,
after a strike in the summer of 1953, and submitted to Carrier for its signature.
Bingham, superintendent for Carrier in the Cincinnati, Ohio, area, was called as a
witness for the General Counsel at the hearing herein and testified that he was
familiar with the document in question'and that the reason he did not sign it was that
Carrier had a contract on the national level with the U. A. and that he felt that
it covered all local situations. Neither the Union nor Carrier insisted that the
contract with Local 392 be signed.. However, Bingham as well as other witnesses
called "by Respondent Local 392 insisted that all parties have adhered to the pro-
visions of the proposed contract, since the parties orally agreed upon its terms.
An examination of the national agreement reveals that Carrier . . agrees to
employ Journeymen Members and Apprentice Members of the UA. on all work
coming under the jurisdiction of the UA.," and further under article V-"As-
signment of men," the agreement provides that Carrier will use members of the
U. A. on all work coming under the U. A.'s jurisdiction, subject to certain limita-
tions which are not applicable to the issues herein.
After his conversation with Maher, Lester returned to the Pogue job to pick ups
his_ belongings Upon his arrival at the job site he saw that another welder had
been assigned to work with one Fisher with whom he had been working for
some time Lester did not know the man and he had not seen him on the job
before DeWeese sent him over to see Maher. at the offices of Respondent Local
392. Shortly after his return to the Pogue job he saw DeWeese. Lester's account
of what transpired at the time is set forth below
Q. Did you have a conversation with Mr. DeWeese at this time?
A. Well, nothing, only to the fact that he kind of'hated it, he said maybe
I could get straightened up 'and come back. _
Q. You'say he gave you•a releases '
A Yes On this release we had a minor discussion; I wanted him to
put on there why he' was letting me go, and he asked me to leave Carrier
Corporation out of it- and that he would tell the truth about it if it ever came
to that, and I agreed to leave, believing he'w'ould tell the truth.
'Q: Who else wa`s present at that'time, if anyone's '
A. You mean on the seventh floor9
'Q. When you were talking to Mr. DeWeese about your release.
A. Just me and him.
.
Q. Then what happened after DeWeese- gave you this' separation slip?
A. Well, T left and went back to Huntington:'
DeWeese's account of his conversation with Lester upon the -latter's return from
Maker's office is most interesting to say the least since it corroborates to some
extent Lester's testimony in this regard insofar as Carrier's role in his alleged dis-
crimination is concerned and in particular DeWeese's understanding of Lester's
difficulty with the Respondent Union. • For this reason the Trial Examiner feels
that an excerot from DeWeese's testimony in this regard should likewise be set forth
herein: Consequently it follows below .
Q. Did you then have a conversation with Mr. Lester subsequent to that
telephone conversation on that same day? •
s See Respondent Local 392's Exhibit No. 1.
423784-57-vol 117-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, I believe I did.
Q. Can you tell us what was said then?
A. Well, right offhand I can't recall just what was said.
Q. Did you give him a separation slip?
A. Yes, I did.
Q.; And, what reason for layoff-for separation did you advance to him
and record on that'separation slip?
A. Well, the reason that I gave Mr. Lester for leaving the job was that the
job was completed as far as he was concerned, on his particular type of work.
Q. And is that what you put on the separation slip?
A. Yes, sir.
Q. Now you heard Mr. Lester testify here earlier, did you not?
A. Yes, sir.
Q. And you heard him say that you were putting that on the separation slip
in order to keep the Carrier Corporation out of any difficulty. Is that true?
A. I don't remember Carrier even being brought into the thing. I remember
that I said, "Let's keep us out of this," so I probably meant Local 392, Carrier,
and everybody concerned. I knew he was in difficulty with the Huntington
local. [Emphasis supplied.]
Q. But did he, ask you to.makepanother. statement on the separation slip other
than the one you made?
A. He asked me to put it on there that he was being discharged because of
difficulties, local union difficulties.
Q. And what did you say to him in response to that request?
A. Well, the only thing I said to him, "The only thing I can do , Bill, is tell
the truth," and that's what I'm doing.
Q. Then he was asking you to falsify the separation slip, is that right?
A. He was asking me to put on the separation slip that he was being dis-
charged because of his difficulties with the Huntington local, or wherever he
had his difficulties.
After his conversation with DeWeese, Lester left the Pogue job and returned to
Huntington, West Virginia.
There remains for consideration two of the major defenses advanced by Respondent
Local 392 at the hearing herein. It must be remembered that all of the Respondents
herein filed what in effect were general denials of each and every allegation in the
General Counsel's"complaint,' except'regarding'certain jurisdictional matters- Such
answers are permissible under the Board's Rules and Regulations, and particularly
so under the Administrative Procedure Act. The two defenses are in a broad sense
closely related and dependent on each other, in that the failure to establish one of
them rules out the other. The Trial Examiner has reference to the following defenses
advanced by Respondent Local 392: (1) That Lester was not discharged by Carrier
because of his difficulties with the U. A. and Respondent Locals 799 and 392, but
because the job at the H & S Pogue Company was practically completed; and (2) that
he was physically unable to work on any of the welding jobs that remained to be
done on the job because they required the use of electric arc welding equipment
which was not only distasteful to Lester, but actually a contributing factor to an
allergy condition with which he was afflicted and that he had so informed Superin-
tendent DeWeese and others on the job.
In the considered'opiriion'of the Trial Examiner the record clearly shows that the
Pogue job actually was nearing completion on May 40, 1954, and was in fact
completed a few weeks later. The General Counsel's Exhibit No. 21 confirms the
Trial Examiner's observation. The exhibit was identified by General Counsel's
witness, W. A. Bingham, Jr., district construction manager for Carrier, in response
to a subpoena duces tecum served upon Carrier by the General Counsel prior to the
hearing herein. The document in question shows' that as of May 10, 1954, there were
14 employees on the Pogue job, including Superintendent Marion DeWeese and
Foreman G. Gering. The caption of General Counsel's Exhibit No. 21 reads as
follows:
H. & S. Pogue Company
Cincinnati, Ohio
The following men were employed on the H. & S. Pogue job in Cincinnati,
Ohio from May 10, 1954 until completion of job.
Thereafter follows a list of the employees, job classifications, social security
numbers, separation date • and _"Reason",.,therefor., An-examination of the list of
employees on the Pogue job shows that only two "Pipefitter-welders" were employed
JAMES SWITALSKI 931
during the period in question , namely Lester and one McDonald , who was trans-
ferred to another job on June 24, 1954.
As indicated above DeWeese testified that one of the reasons he was laying off
Lester was that the only welding that remained to be done on the Pogue job was
electric, welding in the penthouse and that Lester did not or would not do that kind
of welding, pie"sumablyrbecause of.'his.,allergy. DeWeeseradmitted, however,,,that
Lester did do some electric arc welding on the Pogue job, such as tacking on'flanges
and the like. On the other hand, Lester testified that he put in 8 full days of electric
welding on the Pogue job. DeWeese's answer to Lester's testimony in this regard
was in substance that he had no knowledge of any such activity by Lester. In the
circumstances and upon the record as a whole the Trial Examiner credits Lester's
testimony.
At about the time the Pogue job was nearing completion Carrier started a large
installation of its equipment at the Union Central Life Insurance Company building
in Cincinnati, Ohio. This building is only about a block from the Pogue building,
on the opposite side of the street. The record shows that of the 14 employees on
Carrier's payroll as of May 10, 1954, all were transferred to other Carrier jobs in
Cincinnati, presumably the Union Central job, except Lester, who is listed on the
list as having been "laid off," J. Fisher, who quit voluntarily May 25, 1954, and G.
Gering, pipefitter-foreman who quit voluntarily May 25, 1954. DeWeese testified
that the reason Lester was not transferred to the Union Central job was that it was
all electric are welding, which Lester was not qualified to do because of his allergy
or physical condition.
There is a host of testimony in the record about Lester's aversion to electric weld-
ing. Lester did not like to do this type of work on account of the fumes that de-
veloped during the course of the welding, and the "burns" that also occur frequently
while so engaged. Yet the record shows that several witnesses testified that Lester
had done electrical welding on jobs they too were employed on, and that at the time
of the hearing herein Lester was employed on a job where he was required to do
both gas and electric welding.4 As the Trial Examiner sees it, Lester would and
could do electric welding when he had to but preferred to do gas welding, and the
Trial Examiner so finds.
Now as to the events that occurred after Lester returned to the Pogue job to pick
up his belongings: Shortly after he arrived he met DeWeese. What transpired at
that time has been set forth above, in excerpts from the testimony of both Lester
and DeWeese. Here once more" we 'are: confronted" with-, a-- credibility; problem.
After careful consideration the Trial Examiner is persuaded that Lester's account is
the more likely when considered in the light of the record as a whole. Persuasive
evidence that has influenced the Trial Examiner in his resolution of the credibility
issue is as follows:
( 1) DeWeese 's testimony on direct examination concerning the preparation of
Lester 's "separation slip," which has been set forth above. An examination of
DeWeese's testimony in this regard reveals the following pertinent testimony which
has influenced the Trial Examiner in resolving this troublesome issue:
Q. Now you heard him say that you were putting that on the separation slip
in order to keep the Carrier Corporation out of any difficulty. Is that true?
A. I don't remember Carrier even being brought into the thing, I remember
that I said, "Let's keep us out of this," so I,probably,meant Local 392, Carrier,
and everybody concerned. I•, knew, hin, difficulty with they Huntington
local. [Emphasis supplied.]
When DeWeese's testimony in this regard is compared with that of Lester it will be
found that Lester 's account of the incident is along the same general line as to that
of what DeWeese says he "probably meant." In the circumstances the Trial Exam-
iner credits Lester's account of the incident and finds that DeWeese made the
statements attributed to him by Lester.
(2) DeWeese's testimony that he knew that Lester was on the "Detrimental List"
of the U. A. when he came to work on the Carrier job on February 3, 1954. The
documentary evidence as well as the oral testimony adduced at the hearing herein
definitely refutes DeWeese's testimony in this regard. It must be remembered that
the executive board of Respondent Local 799 did not pass on the question of what
punishment was to be meted out to the so-called insurgents until the night of
January 28, 1954. The body of Respondent Local 799 approved their recommenda-
tion in this regard on the night of January 29, 1954, and its action was not communi-
catetfto,the general executive board of the-U. A. until February 5, 1954, 2 days after
4 At the time of the hearing herein Lester was working for the Celanese Corporation
at Gallipolis Ferry, West Virginia.
932 DECISIONS OF-NATIONAL LABOR -RELATIONS BOARD
Lester • was,hired . Moreover , the general executive board did , not officially act on',
the matter until the latter part of March 1954; and. notified Respondent Local 799
of its action . by letter dated April ,1, 1954, -which has,been set forth above ' In,the
circumstances the Trial Examiner cannot, and does not, accept DeWeese's testimony
in this regard , and finds that DeWeese did not know that Lester was on the U. A.'s.
"Detrimental List" at the time he came on the Pogue job . On the other _'hand the
Trial Examiner does find that DeWeese learned later on that Lester was having
difficulties with Respondent Local 799. How he learned of them or the extent of '
his knowledge as to what these difficulties were is not disclosed by the record. The
Trial Examiner is convinced , however, and he finds , that neither •DeWeese nor;
Maher knew that Lester was on 'the U. A.'s "Detrimental List" until they were
notified by the steward on the job, Gering , who advised them in this regard after he
had talked to President and Business Agent Chapman of Respondent Local 799 on
May 10, 1954. In the considered opinion of the Trial Examiner , this explains the
abruptness of Lester 's layoff, since obviously neither DeWeese nor Maher wanted,
to get involved with either Respondent Local 392 or the general executive board
of the U. A., in view the plain language found in the U . A 's constitution 5
Having resolved these credibility issues, the Trial Examiner now makes a further '
observation regarding his position on this troublesome issue. As indicated above,
this issue has caused him great concern. Of necessity he will be compelled to herein-
after credit portions of the testimony of witnesses and discredit their testimony on
other matters. There is nothing new or novel about a trier of the facts being faced
with such a dilemma. Juries across the land are daily faced with this problem.
The same is true as to the Board and other administrative agencies In Bruns Coal
Company Inc., 106 NLRB 590, the Trial Examiner said when faced with a similar
situation:
. . . Nevertheless , it does not follow that simply because one does not believe
a particular thing to which a witness testified that everything he says must then
be rejected , Judge Learned Hand states the rule thus. 11
It is no reason for refusing to accept everything that a witness says because
you do not believe all of it; nothing is more common in all kinds of judicial
decisions than to believe some and not all.
'IN L R. B v Un s ersal Camera Corp, 179 F 2d 749 (C A 2).
I Both DeWeese and Maher were members of Local 392, and unquestionably were aware,
of the following provisions of its constitution and bylaws.
Article VIII, Section 5 Violations of 13y-Laws or Constitution A member failing
to comply with the constitution of the United Association , or by laws of working -
rules of this Local shall be punished in accordance with the Constitution of the
United Association [ Emphasis supplied 1
ARTICLE vr
Duties and Compensation of Officers
SECTION 1 General Duties The duties of officers shall be those set forth' in the
constitution of the United Association'and such other duties as the Local shall Boni
time to time direct
SEC 2 Duties of Business Agent The Business Agent shall be in charge of'the
business affairs of the Local, and shall handle all matters referred to him by the
Local or by the Executive Board He shall issue work permits and assist the
Financial Secretary in the collection of delinquent dues and other moneys due the
Local He shall have the authority to delegate members of the Local to act as shop
stewards , to remove members from any jobs until the next succeeding meeting of the
Local or of the Executive Board , and may require members working in any shop to
furnish hum with relevant information , whenever in his discretion lie believes that
the working rules of the Local are being violated He shall make complete reports
of his activities to the Executive Board at Executive Boaid meetings
See also section 186-U A constitution
'Any member committing any act for which he has been disciplined by either an
assessment, suspension , or expulsion , which has been approved by the General
Executive Board, cannot be reinstated by any local union without the consent of the ,
General Executive Board
The constitutional meaning and intent ' of the above section 186 is that the Local Unions
cannot remove any disciplinary measures already sanctioned by, the general executive
board on members or ex -members without the appiova h of the general executive board
JAMES SWITALSKI 933
Concluding Findings as to Respondent Local 392
, It. has been well said that hard cases make bad law. Such is the situation here. The
,Trial Examiner after carefully weighing all of the evidence on this particular Respond-
ent, Local 392, concludes and finds as indicated below. .
Summing up the above findings of fact the Trial Examiner is convinced and-finds
That- Respondent Local 392 caused Carrier-to lay` off Lester on May 10, 1954, for
reasons other than the nonpayment of dues and that by so doing it violated Section 8
(b) (2) and 8-(b) (1) (A), of the Act. He premises his findings on many facets.
To begin-with, the Trial-Examiner ha's found above that neither DeWeese nor Maher
knew that Lester was on the U A.'s "Detrimental' List" at the time he was hired on
February 3, 1954, for the simple reason that he was not placed on the U. A.'s list
until the latter part of March 1954, almost 2 months after he was hired. The Trial
`Examiner does find, however, that DeWeese and-Maher knew that Lester was having
some difficulty with Respondent Local 799. By the very nature of things it would
have been natural for Lester to have divulged some of his troubles to his coworkers.
That is to be expected. The extent of his disclosures is not found in the record.
However, the Trial Examiner is not convinced that Lester shouted from the house-
tops, so to speak, that he was on the U. A.'s "Detrimental List." The Triad Examiner's
reasoning in this regard is predicated on the fact that Lester had been a member of the
U. A. and Local 521 for about 13 years before the events with which we are con-
,cerned herein occurred, and it is reasonable to infer that he was familiar with the
'U -A.'s constitutional provisions regarding those on its "Detrimental List." - That such
an inference is justifiable is evidenced by the further fact that the depositions and trial
of the so-called insurgents took place in January 1954, and the finding of Respondent
Local 799's executive board was submitted and approved by the body on January 29,
1954 It is reasonable to assume that Lester and the'other insurgents involved were
well aware of the seriousness of their predicament at least at this time, since it di-
rectly affected their livelihood. For this reason alone it is not likely that they would
expose their position to others in their search for employment in the trade.
Lester's difficulties with Respondent Local 799, and particularly the fact that he
was on the U A.'s "Detrimental List," came suddenly out into the open as a result
of Gering's telephone call to Chapman, business agent and president of Respondent
Local' 799, on the morning of May 10, 1954. The Trial Examiner has found above
that,Maher laid considerable stress in his conversation with DeWeese on the difficul-
ties that he personally would be faced with if he authorized Lester's continuance on
the job, and in particular to the adverse effect 'it would have not only as to him per-
sonally but also Local 392 as well . In other words he could not afford to ignore the
plain language of the U A 's constitution. -
The Trial Examiner is also convinced that DeWeese was influenced by what Maher
told him in their conversation, and that as.a result changed his mind about Lester and
decided to lay him off for the reasons fully discussed above. it is reasonable to infer
from the facts found above that DeWeese, as superintendent on the job for Carrier,
was familiar with the contractual relations between Carrier and the U. A., as well as
the understanding and practice between its Cincinnati division and Respondent Local
392, and realized the difficulties that Carrier might become involved in should it ignore
Maher's position in regard to Lester and keep him on the job. The Trial Examiner
is, convinced and he finds that when DeWeese realized the trouble that might ensue
for Carrier, he changed his mind about Lester and decided to lay him off rather than
face a showdown with Maher and Respondent Local 392. The facts found above
compel such an inference. ` _ .
For these reasons the Trial Examiner is convinced and finds that Carrier laid off
William C. Lester on May 10, 1954, at.the request and demand of Respondent Local
392, acting through its business agent, James Maher, for reasons other than the non-
payment of dues and not for the reasons advanced by Respondent Local 392 at the
hearing herein. '
Though Carrier is not a party to this proceeding, nevertheless a finding of a viola-
tion of Section 8 (b) (2) may be made against a labor organization which causes an
employer to discharge an employee in violation of Section 8 .(a) (3) of the Act.
The-lest that the Board applies in such a situation is set forth in a recent case, Local
148, Truck Drivers and Warehousemen's Union, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,.AFL-CIO
(Harry Griffin Trucking), 114 NLRB 1494. There the Board said, inter alia, in foot-
note 8 the following'
As the Board has heretofore held, the General Counsel, in order to establish a
j i labor'organizatibn's liability for a' violation of Section 8 (b)' (2) in. causing
employer discrimination,, "must, proye, that, the labor organization `caused' the
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to engage in conduct which-if the employer were before the Board-
would be found violative of Section 8 (a) (3)." Newspaper and Mail Deliver-
ers' Union of New York and Vicinity, 93 NLRB 419, enfd. 194 F. 2d 698
(C. A. 7). See also International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, CIO, 92 NLRB 968.
In the considered opinion of the Trial Examiner, the General Counsel has met the
test laid down- by the Board in the above-cited case and it is so found.
B. The alleged violations of Section 8 (b) (1) (A) and 8 (b) (2) by James
Switalski and Local 799
In order to understand this phase of the case the Trial Examiner feels that the
relationship between J. F. Pritchard & Co. and Local 799 should be set forth before
disposing of the specific allegations in the complaint regarding the alleged discrim-
ination against Lester by Respondents Switalski and Local 799.
Pritchard is engaged in the engineering and construction business in various States
of the United States. At times material herein it was engaged in the construction
of a gas compressor station for the United Fuel Gas Company (sometimes referred
to herein as the United) at Ceredo, West Virginia, a small community 15 or 20
miles from Huntington, West Virginia. The record shows that Pritchard started
the United job at Ceredo sometime in the early part of December 1953. At this
time Pritchard had the following top supervisory employees on the Ceredo job:
Mr. Gibbs was the construction superintendent, who actually got the job underway,
and a•man by the name of either Walt-Brown or Braun was assigned to work with
Gibbs as the project manager; however, he was assigned on a temporary basis and
was replaced by L. D. Williams who was later assigned to the job on a permanent
basis. One of the first men hired on the job was Howard E. Carr, former business
agent of Local 521. He was hired by Brown or Braun on or about December 15,
1953. Since the circumstances under which Carr was hired and his relationship to
Respondent Local 799 have been most persuasive in the Trial Examiner's ultimate
determination of the issues presented in this section of his report, he feels that
Carr's credible testimony regarding the circumstances under which he was hired
should be set forth herein. Consequently an excerpt therefrom follows below:
Q. Will you tell the Trial Examiner how you came to become employed with
this company at that time?
A. As well as I remember the job was just starting, J. F. Pritchard Company
through their construction superintendent, a Mr. Gibbs, set up the job with
a man by the name of Walt, but I can't remember his last name, it was Braun
or Brown or Boone or some odd name.
TRIAL EXAMINER: B-r-a-u-n, wasn't that it?
The WITNESS: I can't remember.
TRIAL EXAMINER: It's in the record, I'm pretty sure.
A. (Continued.) He was-.their, project, manager. However, he was only
there on a temporary basis, and was replaced on a permanent setup by L. D.
Williams.
This Mr. Braun, or Walt, as I called him, called my residence and asked me
if I would be available to work on that particular job, and I assured him I was,
and I went to work for the J. F. Pritchard Company the next morning.
Q. (By Mr. Dunn.) Now when you went out on that job, to the best of
your recollection was Local 521 still in existence?
A. They were not.
Q. Were you a member of any other United Association local at that time,
at the time that you were,hired?
A. No, sir, I was not.
Q. Did you subsequently become a member of Local 799?
A. I did.
Q. Can you tell us when that was?
A. The latter part of August or the first of September, 1954.
Q. Now, how long did you remain on the Pritchard job, to the best of your
recollection?
A. I was about the first and the last, probably the first employee and one of the
last employees.
Q. So that you worked-
A. A year.
Q. -about a year, up until -September or October, 1954, is that when that
job-
A. Well, that was clear up into December of '54.
JAMES SWITALSKI 935
Q. Now what did Mr. Gibbs-you gave his name as Mr. Gibbs-what did
Mr. Gibbs hire you as and what were your duties?
A. Mr. Gibbs did not employ me. This project manager under Mr. Gibbs-
Q. Walt Braun is it?
A. Walt hired me as a pipefitter. My initial work there that he hired me for
was the installation of temporary heating on the job.
Q. And when you performed that did you continue on the job with any
other duties?-
A. I continued on after the original temporary piping work , as first in charge
of all tool equipment, and the receiving and checking of all pipes , tanks, vessels,
and so on pertaining to the pipefitting trade. [Emphasis supplied.]
As indicated above the Trial Examiner credits Carr's testimony.
At the hearing herein the General Counsel called as a witness P. S. Lyon, secretary-
treasurer of J. F . Pritchard & Co. The record shows that Lyon appeared in answer
to a subpoena duces tecum for the purpose of testifying to contractual relations be-
tween Pritchard and the U. A.
According to Lyon's credible testimony, there was no written agreement between
Pritchard and the U. A. at times material herein, but in the past there had been
written agreements between the parties, the last of which was in effect from August
18, 1947, until August 15, 1948. According to Lyon this contract was not renewed,
but Pritchard did have an oral understanding with the U. A. to the effect that it
could operate ". . . under the general terms and conditions of the 1947-48 contract
except those portions which became subject to question on account of new legisla-
tion," meaning the Taft-Hartley Act. He qualified his testimony in this regard to
the extent that at the time he was testifying representatives of Pritchard and the
U. A. were meeting in Washington, D. C., for the purpose of negotiating a contract.
Of prime importance to the issues herein is the practice followed by Pritchard
on the United job at Ceredo in regard to the hiring of employees. As indicated
above Carr was one of the first men hired by Pritchard. He was hired as a pipefitter,
and after installing heating equipment in Pritchard's offices, he was placed in charge
of the toolroom. He was occupying this position when Sam Brooks came on the
job in the early part of March 1954. Brooks was sent to the Ceredo job by Pritchard
to act as pipe superintendent. One of the first persons Brooks met was Can,
at which time they had a long conversation in Can's office in the toolroom. In
the course of their conversation Carr told Brooks of his experiences in the area,
and in particular about his employment on a big gas company job near Cambridge,
Ohio, where he had worked before coming on the Pritchard job at Ceredo. Can
evidently impressed Brooks, because the upshot of their conversation was that Brooks
gave Carr the authority to recruit men for the job. Carr's testimony in this regard
is, in the considered opinion of the Trial Examiner, of the utmost importance in
his ultimate disposal of the issues herein. Consequently an excerpt from his testi-
mony follows below:
Q. Do you know a Mr. Sam Brooks?
A. I do.
Q. Do you remember having a conversation with Mr. Brooks on or about
April 1, 1954, when Mr. Brooks came there as pipe superintendent?
A. Yes, distinctly so, but it wasn't the 1st of April.
Q. Pardon me, when would that be?
A. It would have been in March, the early part of March.
Q. All right, you did have a conversation with Mr. Brooks?
A. iI did.
Q. Can you tell us what that was?
A. I probably'was'the,second-man'that,Mr.Brooks met'on,the job. He came
into my office or tool room- we call it, and ascertained first that I was there as a
pipefitter, and we discussed at length the job in question, the compressor station,
and he, having learned from my conversation that I just recently finished a
big compressor station at Cambridge, Ohio, gave me literally the right to secure
the employees for that job to the extent that he asked if I could find in the
immediate area, qualified, competent, skilled mechanics of the trade for that
type of work, and I assured him that I could.
Q. And you attempted to do so?
A. 1 did do so.
Q. You secured mechanics who you in turn submitted to Mr. Brooks?
A. I did.
Q. Who did the hiring there?
A. Mr. Brooks hired every man.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Who did the laying off?
A. Mr. Brooks.
Q.. Now, did you recruit mechanics such as pipefitters and welders?
A. Not only pipefitters and welders, but several other crafts for the employ
of the Pritchard Company.
Q. You just heard Mr. Black testify that he came on that job to see Mr.
Brooks, to see if he could get employment with him. Were there any other
people who came out to that job besides Mr. Black and Mr. Wilks, I believe,
who got employment there, to your knowledge? -
A. Yes, sir, there was.
Q. Do you recall about how many other people?
A. In numbers specifically, no, but I would say there was not less than 25
employees at that company who by personal solicitation were given work.
Q. In your conversation with Mr. Brooks in respect to recruit employees, was
the question of whether they would be union or non-union members mentioned?
A. That specific point was never mentioned at no time.
TRIAL EXAMINER: Wait a minute, let's hear that. Read the witness' answer.
(Answer read.)
TRIAL EXAMINER: All right, go ahead.
Q. ;(By Mr. Dunn.) When these prospective pipefitters or welders or any
other type of mechanic came out to that job, did you ask for or receive either
an assignment slip or a referral slip?
A. No, sir, I did not.
Q. Did you know of your own knowledge whether all of these mechanics
were union members?
A. I did not know that they were union members.
Carr's relations with Respondent Local 799, at times material herein, are, to say
the least, an enigma to the Trial Examiner. He refers to the fact that though Carr
was not a member of either Respondent Local 799 or any other local of the U. A. at all
times material herein, nevertheless he was considered by all, including Local 799 and
Chapman, its business agent, as the steward for Local 799 on the Pritchard job. The
Trial Examiner will make no attempt to resolve this situation. Suffice it to say that
Carr was the business agent of Local 521, and lost his union membership when its
charter was revoked in December 1953. The record does show, however, that Carr
paid $5.25 to Respondent Local 799 on January 4, 1954, and was given a receipt for
his money the same as Lester and others styled as "insurgents." Clearly, Carr was
not an insurgent but on the other hand was one of the victims of the so-called insur-
gents "hooliganism" in the latter part of October 1953.
In the considered opinion of the Trial Examiner the record clearly shows that if
there was any "arrangement" regarding the hiring of employees between Pritchard
and Respondent Local 799, it functioned in a most peculiar manner since the record
also shows without contradiction that workers were hired at the job site without hav-
ing either assignment or referral slips from Respondent Local 799, or any other local
of the U. A. The same is true in regard to other crafts in the construction industry.
For example, George Wilks, a member of Respondent Local 799, did not even
bother to go to his business agent for a job, but drove out to the job site and saw
Brooks who hired him on the spot as a pipefitter. The same is true as to L. H. Black,
one of the insurgents found guilty by Respondent Local 799 for his participation
in the Local 521 affair and placed on the "Detrimental List" by the U. A. along with
Lester and the other insurgents. The record shows that he went out to the job site,
applied for a job as a pipefitter, and was hired by Brooks without any question being
raised as to his membership or status in either Respondent Local 799 or the U. A.
As indicated above, Sam Brooks arrived at the Ceredo job sometime in the early
part of March 1954, and assumed the duties of pipe superintendent. Brooks testi-
fied at the hearing herein that he, and he alone, had the authority to hire and fire
employees for Pritchard in his department. Each applicant was interviewed and
either accepted or rejected by him at the job site.
According to Brooks' testimony, which the Trial Examiner credits in. toto, he
visited the union hall accompanied by Carr shortly after he assumed his duties on the
Ceredo job. The purpose of his visit was to advise the business agent that he would
be needing pipefitters and welders from time to time and to find out whether or not
the Local could furnish well qualified craftsmen. One of the reasons he desired this
information was that in the past he had been forced at times to bring qualified
workmen from places that were a considerable distance from the job site and he
wanted to be forewarned, so to speak, in this regard as soon as possible so that he
could make the necessary arrangements. According to Brooks and Carr it was the
practice for Brooks to notify Carr when he needed certain craftsmen, and it was then
JAMES SWITALSKI 937,1
Can's jobito locate them and have them report to Brooks for an interview concerning'
their qualifications for the job. The record indicates that the facilities of Respondents
Local 799 were used from time to • time for this purpose. There is nothing illegal'
in such a procedure as long • as it is practiced without discrimination against the in_,
dividual employee . It is a matter of notorious and common knowledge that those;
engaged in the construction business are of necessity compelled -to follow this pro-
cedure when moving into a,new and strange territory such as Pritchard in the case:
at hand.
The record also shows that at all times material herein , and in particular ' at the;
time Lester returned from Cincinnati , Ohio, , May 11, 1954 , there was little buildings -
construction -activity in the Huntington area. As a matter of fact the record shows
that when Lester returned 'from Cincinnati there were approximately 300 members of,
Local 799 either working . in other jurisdictions or unemployed . As the Trial Exam-i
finer interprets the record there , were only about 100 members of Local 799 employed,,
iii the Huntington area at this time. This figure includes those who had more 6r,
less permanent jobs with ' local plumbing, heating, and ventilating companies. and l
those on the Pritchard job at Ceredo. Hence it is obvious that there were many
ahead of Lester - who had been unemployed for-weeks and months before Lester(,
appeared on the scene . Such . was the situation that confronted Lester when he
arrived in Huntington:
Lester -testified at great length at the hearing herein . Quite frankly the Trial,
Examiner is a bit baffled by some of his testimony , particularly as to dates that have ;
a bearing . on the issues herein . For example , Lester testified that on or about May
14, 1954, he had a conversation with Switalski in Local 799's hall in Huntington,-
West Virginia , about getting his book "straightened up" so he could go back to Cm
cinnati, Ohio , and get a job.
Switalski , on the other hand , testified that he did not have a conversation with
Lester on or about May 14, 1954 . In support of his testimony he referred to notes,
taken from his personal diary in which he kept a record of his itinerary day to day.
He testified that on May, 14, 1954 , he was in Charleston , West Virginia , and conse-
quently did not have any such conversation ' with Lester. He further testified that
according to his records he did have a conversation . with Lester , on June 10, • 1954,,
under the following circumstances . 6 He was in Huntington on that day and met ,
with a Mr. Don Cunnard , a representative of Plumbing , Heating and Piping Con- ,
tractors̀ Association , in regard to a consent election as provided in Section 9 (c) of ,
the Act. While they were in conference , one of the office girls came into the room
where he and Cunnard were in conference and informed him that Lester was causing,
her some trouble , and insisted upon seeing him.
According to- Switalski he then left the conference room and went out to see
Lester., - - An excerpt from Switalski 's testimony follows below:
Q. =Did you see him?
A. I went out , I told her to tell Mr. Lester that I'd be out in just a moment,
temporarily I'd be out there. -
So Mr. Lester says , !`What are - you going to do about my- Union book?"
"Well;" I said, "Bill," I said, "anything pertaining to your membership or your
Union book , you're going to have to take that up with the local executive
board."
He said, "Well , would you do me a favor ?" I said , "If possible, I'd do any-
body a favor." He said, "Would you call Jimmy Maher down in Cincinnati and
see if Jimmy Maher has any work?" -
So I went back into the office in the conference with Mr. Cunnard and I called
the office of. 392 and reached Jimmy Maher. I says; `-`Jim," -I said, "there's a
fellow here by the name of Bill Lester ," I says, "do you know him?" He says,
"Yes, I know him." I said=he said, "Yes , I kriow him. Bill worked down here
last month ." I said , "Well, Jimmy, do you have any work for him?" -
Mr. Maher told me, he said , "Well, Jim ," he says, "we 're in the second week
of a strike and," he says , "but you tell Mr. Lester to keep in touch with this
-. office ' and if , any work comes up," •he says ; "I'll put -Mr. Lester to work." I
said, "You don't have anything now?" He said , "No, Jim" he says, "we 've ^got
local people out of work and out-of-town people 'stranded here in Cincinnati
because there isn 't any work for them."
After talking to Maher, Switalski ' asked Henderson , who came . into , the con-
ference room in answer to an interoffice buzzer to the front office, to convey the
it - -
'e Switalsl is testimony that 'he called Maher about Le'ster 'getting a job in the Cincinnati,
Ohio, area was corroborated by, the credible - testimony of James Maher , business agent for
Respondent Loeal 392
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information he had received from Maher regarding the situation in Cincinnati, Ohio.
Henderson then went out and tried to convey the message to Lester, but Lester re-
fused to talk to him , and insisted that he see Switalski . Henderson then returned to
the conference room and told Switalski of Lester 's belligerent attitude . Switalski
again went out and told Lester what Maher had told him about the Cincinnati
situation . Switalski further testified , in substance , that it was obvious that Lester
had been drinking quite heavily at the time the above incident occurred.
After due consideration and from his observation of the witnesses the Trial
Examiner credits Switalski 's account of the above incident and discredits that of
Lester. He is convinced that Lester had his dates wrong . Moreover, the Trial
Examiner will find below other inaccuracies in Lester's testimony, and where he
deems it necessary will comment at some length on his impression of Lester as a
witness. Suffice it to say at this stage of the report that even though he has hereto-
for credited certain portions of Lester's testimony , it does not follow that he must
,credit him as a witness regarding each and every incident for reasons which have
been set forth above.
Switalski further testified credibly that this was the only conversation he had with
Lester at times material herein.
In further support of his theory of the case that Respondents Local 799 and
Switalski caused or attempted to cause Pritchard to refuse employment to Lester, the
General Counsel offered the testimony of George Wilks. According to Wilks, at all
times material herein a member of Respondent Local 799 's executive board , Switalski
had the right to sit in on any of the meetings of either the body of Respondent Local
799, or of the local executive board , and that to his personal knowledge Switalski
only participated in 1 meeting of the body and I of the excutive board. As the Trial
Examiner understands the record , the meetings referred to were the following: (1)
The first meeting of the body of Respondent Local 799, at the time Switalski pre-
sented to the body its charter on January 3, 1954; and (2) the meeting of the
executive board on June 11, 1954 , when it recommended to the general executive
board of the U. A. that the "Initiation Fee" df $2,825 be lowered to $150 as to
certain of the "insurgents ," including Lester. Wilks further testified that Switalski
did not participate or make any recommendation of the executive board as to what
action it should take as to the insurgents . In the considered opinion of the Trial
Examiner Wilks' testimony is of the utmost importance in his ultimate determina-
tion of the issues herein as to Switalski . For this reason he feels that an excerpt
from Wilks' testimony should likewise be inserted therein, particularly because it
stands uncontradicted and undenied in the record and is fully credited by the Trial
Examiner . Consequently his testimony in this regard follows below:
Q. (By Mr. Dunn.) When you talked to Mr . Chapman and asked him to
hold a job open for Lester, I think your testimony was that you did this on the
same day that Mr . Lester was appearing before you?
A. Did that on the same day that we made the recommendation to have
their $2,825 cut back down to the regular initiation fee, which was $150.
Q. In order to refresh your recollection , July 23 , 1954 , does that strike any
particular familiar note in your mind as to the date?
A. I don't know whether it does or not.
-Q. Now as to Mr . Switalski , you testified that it was your understanding
that Mr. Switalski was to operate as a monitor?
A. He could set in on any meeting.
Q. He could?
A. He could set in on any meeting that he seed fit to set in on , if I understood
it right.
Q. After Local 799 was established, as I understand your testimony, I under-
stand your testimony to be that he appeared at one meeting of the general
membership, is that right?
A. That's right.
Q. And one meeting of the general executive board in which you had-not
general executive board , of the local executive board in which you had a con-
versation about the $150 initiation fee, is that correct?
A. That's correct.
Q. Those are the two meetings that he was present at?
A. (Nods.)
Q. Did Mr . Switalski at any time ever try to keep this so-called insurgent
group from again becoming members of Local 799 or any other local, to your
knowledge?
A. Not as I know of . It was just left up to us, we had to handle it.
JAMES SWITALSKI 939
Q. As a matter of fact, Mr. Wilks, not only did he leave it to your discretion
but he was using the best efforts to get these men back so that the local would
get into operating condition, isn't that true?
A. He told me, the executive board, we would have to use our own judgment.
Q. Would have to use your own judgment?
A. That's right.
Wilks further testified that to his personal knowledge Switalski visited Respondent
Local 799 only 6 or 7 times while he was a member of the local executive board,
from January 3, 1954, to around July 23, 1954, including the times he attended the
meeting of the body on January 3, 1954, and of the local executive board, June
11, 1954.
Lester on direct examination testified glibly that he saw Switalski about once a
week in and around Respondent Local 799s business office between May 10, 1954,
and, the -latter part. Of July 1954. But on cross-examination he "hedged," so to
speak, and admitted in substance that perhaps it was after all only about 6 times or
"2 times 3" as he put it. Switalski testified that his records showed that he visited
Respondent Local 799's offices 6 or 7 times during the period in question. He
also pointed out that shortly after Lester appeared on the scene in Huntington
President Durkin of the U. A. increased his territory and added to the West Virginia
area the State of Virginia and 'a part of the northern half of North Carolina, which
gave him increased duties, including 25 locals to service in his capacity as an
organizer for the U. A. He further testified that during this same time he lived in
Portsmouth, Ohio, and it was necessary for him to go through Huntington, West
Virginia, to get home no matter from what geographical section of his territory he
was returning home.?
In the circumstances set forth immediately above the Trial Examiner credits the
testimony of Wilks and Switalski as to Switalski's activities in and around the
offices of Respondent Local 799.
In the considered opinion of the Trial Examiner the constitutional duties of
Switalski as an organizer for the U. A. and his oral testimony in this regard might
as well be disposed of here as "further up the creek," so to speak, since we will
run into this question on several occasions below. To begin with let us look to
the constitution of the U. A. regarding the duties of an organizer.
ORGANIZER
[Page 18] SEC. 30. The General President shall compose Districts to be
known as Organizers' Districts, and to each District one or more Organizers
shall be assigned by the General President, to assume his duties therein until
assigned to another District by the General President. Three General Organ-
izers who shall be citizens of Canada shall be assigned to the Canadian District.
The General Organizers of this Association shall be under the supervision of
the General President, assisted by the General Secretary-Treasurer, and they
shall have full power and authority to settle all disputes and grievances of any
kind in or between Local Unions, District Councils or State Associations, or
between members and Local Unions, when directed by the General President;
and they shall have full power and authority to suspend [Page 19] and revoke
the charters of Local Unions, District Councils or State Associations in accord-
ance with the provisions of Section 127 and 128 of this Constitution, when
directed by and with the consent of the General President. They shall, when
not otherwise engaged, prepare an itinerary for'-Local'Unions situated in their
District, so as to avoid any unnecessary travel, including therein such unorgan-
ized towns whose importance would warrant a Local Union of the United
Association.
SEC. 31. Previous to their arrival, they shall have notified Secretaries of
Local Unions of their coming and instruct the Secretaries to call a meeting
(special or regular as the case may be) and instructions shall there be given as
to the nature of the services required, but in no case shall the Organizers devote
any time, assistance or attention, to the individual interest or benefits of any
member. During meetings of the General Executive Board the Organizers
will continue in their districts unless requested to be rat such meetings by the
President.
SEC. 32. They shall furnish monthly to the General President a detailed
report of the business transacted, and shall make such recommendations as in
their judgment may be required for the welfare of the United Association and
its Local Unions. [Emphasis supplied.]
7 'Any official highway map will confirm Swifalski's'testimony as to main highways.
940 DECISIONS OF NATIONAL - LABOR- RELATIONS BOARD
An examination, of • S_ witalski's testimony shows that in the :main he. outlined ills
duties as an organizer for the U. A. along the lines set forth above There is no
substantial evidence in the record showing - that, Switalski either interfered with
Respondent Local 799.'s executive board-in their handling of the many problems it
faced in the trial of the insurgents, or-in-its disposition of their appeals at its official
meeting in this regard on June 11, 1954, at which time it reached the decision to
recommend that Lester and certain others be taken off the "Detrimental List," and
their "Initiation" fee lowered from $2,825 to $150. In'the circumstances the Trial,
Examiner now finds that Switalski neither, dominated nor interfered in any manner
with the official duties of Respondent Local 799's executive board in their disposi-
tion of the problems raised by the-so-call insurgents. -
In further support of his contention that Respondent Local 799, through its named
officers, ". . attempted to cause, caused and is now causing Pritchard to refuse to
hire William C. Lester because he was not a member in good standing of Respondent'
Local 799 for an available job with Pritchard,' thereby causing Pritchard to encourage
membership in Respondent Local 799, in violation of Section 8 (a) (3) of the Act,",
the General Counsel offered the testimony of Lester as to certain conversations with
officials of Respondent Local 799, 'and that of certain corroborating witnesses.
According to Lester he met James Chapman, business agent for Respondent Local
799, in Touffi Kassab i's-confectionery, located a few doors down the street from the
union' hall and a "hangout" for -members of the craft, on May 18, 1954. At this'
time he asked Chapman about' sending him out to the Pritchard job at Ceredo, West
Virginia, and Chapirian told him "that he couldn't give me a ,job if he need 14
welders and I was the only one loafing." -
Chapman's testimony in this regard was to the effect that he could not recall having .
told Lester any such- thing , He did, admit, however, that he probably did talk to
Lester and many others in "Touffi's" at this time because many members of the
Local were unemployed and he was constantly besieged by dozens of them to send
them out on a job, which were for the most part nonexistent in the Huntington area
at this time.
Lester's testimony as to his conversation with Chapman was corroborated by the s
witnesses Thurman Grass and'George H. McGehee.8
McGehee corroborated Lester's testimony as to the above-described conversation
between Lester and Chapman In addition, he added the following as part of Chap-
man's answer to Lc^ler's question as to why he could not send him out on the
Pritchard job at Ceredo, that it was because "Jim Switalski won't let me send you."
- McGehee further testified in substance that at the time Chapman and Lester had
the above conversation on May 18, 1954, jobs were available at the Pritchard job at
Ceredo, and that the reason he knew this to be a fact was that he saw two members
of Local 799 with assignment or referral slips to the Pritchard job at Ceredo. But
the General Counsel's own documentary evidence refutes McGehee's testimony in
this regard. An examination of General Counsel's Exhibit No. 4 shows that: (1)
Booth was hired by Pritchard as a pipefitter-welder on June 14, 1954, and terminated
on July 2, 1954; and (2) Ball was hired as a pipefitter-welder on June 14, 1954, and
terminated on July 2, 1954 In the circumstances and upon the record considered as
a whole the Trial Examiner credits McGehee''s testimony as to Lester's conversation
with Chapman, but rejects his testimony as to the hiring dates of Booth and Ball, and
further finds that his testimony as to Ball and Booth is not supported by the General
Counsel's own exhibits admitted'in evidence at the hearing.
As indicated above, Thurman Grass also corroborated Lester's testimony as to his
conversation with Chapman. On cross-examination Grass testified that on or about
July 27, 1954, he and one Pat Hamlin were in the office when Pritchard called in for
two men to do some repair work out on the Ceredo job. Since he and Hamlin were
the only two there at the time, they went out to the job and were hired directly by
L. D. Williams, the general superintendent. They did not see either Brooks or Carr
at the time. At this time the Trial Examiner desires to point out that on July 27,
1954, Grass had not yet been obligated and accepted as a member in Respondent
Local 799, and was not until August 6, 1954. The record further shows that Grass'
name was not removed from the "Detrimental List" by the general executive board
of the U. A. until August 18, 1954.
s The official transcript of the record shows at page 189, line 12, the name to be
"George McGee," but at page'460, lines 16, and, 20, the name is "George I-I McGehee "
The Trial Examiner is convinced-that the,latter-,is correct. Consequently lie corrects the
record'to this extent.
JAMES SWITALSKI '- 941
- After due reflection the Trial Examiner credits Lester's account of his conversa-
tion with Chapman .'- He also credits Chapman 's testimony that at this particular time
- he was daily harassed by countless members of Respondent Local 799 in search of
employment in the Huntington , West'Virginia ,^ area. He also credits Chapman's tes-
timony that- he never had a request from any member of Pritchard 's managerial staff
to send Lester out on the job.- `The Trial -Examiner'also credits Chapman's testimony
as to Respondent Switalski to the effect that { Switalski never at any time instructed
him as president of Local 799 or in his capacity as business agent to discriminate,
regarding assignment to jobs; either as to , Lester , or any , member of the so-called
insurgents . Again, the Trial Examiner also credits Chapman's ,testimony that Swital-
ski made only 6 or 7 visits
-
to his office during times material herein.
One of the most controversial - issues presented byi the General Counsel in support
of his case- in-chief revolves around Lester 's testimony as to a conversation he had
with William "Red"- Davis. '
= Lester testified that he was in Touffi Kassabi's confectionery ` in Huntington, West
Virginia , sometime between July 1 and 5 , 1954, when he had ` a conversation with
Davis about securing a lob with Pritchard on the Ceredo job. According to Lester,
Davis at this time was the general foreman on the job , and represented Respondent
Local 799. His explanation of this baffling situation was that under U. A. practice
foremen and general foremen are selected from members of ' the local in accordance'
with the number of craftsmen on the job. As the Trial Examiner sees it Lester had
reference to the following clause in the working agreement between the Plumbing
and Heating Contractors of Huntington , West Virginia , and vicinity and the Plumbers
and Steamfitters Local Union No. 521 of Huntington , West Virginia-
13. It is further agreed that a Foreman will be employed on all commercial
work where there are two or more men and he will receive an additional' $2.50
per hour above the scale, and ( 1) Foreman for,each additional five (5) men
thereafter shall receive an additional 250 per hour above the Journeymen rate
of pay. When as many as nine ( 9) men are employed , one man shall be desig-
nated as General Foreman, who shall receive an additional 500 per hour above
Journeymen ' rate of pay . Any job employing twenty ( 20) or more men, the job
steward shall receive 25 0 per hour above Journeymen rate of pay.
The Trial Examiner is convinced and finds that this was the procedure followed by
Pritchard on the Ceredo job, and what Lester was attempting to explain '. The Trial
Examiner further finds that Pritchard acquiesced in-this , practice on the Ceredo job.
This is not to say that Pritchard was bound by the terms of the 'agreement cited '
above, because he finds to the contrary below. Suffice it to say that the Trial Exam-,
mer,does find below that Pritchard did follow local custom as to wages; hours, and
other conditions of employment, but was not bound by any special agreement written
or oral with either Respondent Local 799 or the U. A.
` ' Now back to Davis.- According to Lester he saw Davis in Touffi 's and "jumped,
on" him about something that had happened at a meeting of Respondent Local 799 9`
In answer to Lester's,remarks , Davis; according , to Lester, said , "I don't see why you
should be hot at me, as I have kept a job ' open for you and, Pat Hamlin on'the Pritch-
ard job , and you could not get cleared by Mr.' Switalski and Chapman ." But on
cross-examination Lester in his account of the ' conversation placed the onus on Swi-
talski alone as being the person who would not give him clearance for a ,job with
Pritchard on the Ceredo job. . , -
The record shows that during the month of June 1954, five,pipefitter -welders were
hired by Pritchard on the Ceredo job. Who they were , from whence they came, is
not shown by the record , 10 nor is there any evidence in the record showing whether
they came from other jurisdictions of the U. , A. or were members of Respondent
Local 799 and sent out to the job by its business agent. Further examination of the
list of those hired by Pritchard after May 10, 1954, shows that the date the last -pipe-,
fitter-welder was hired was on June 14, , 1954 ,,which was almost 3 weeks before Les-
ter had the above-described conversation with Davis . The same exhibit , General
Counsel 's Exhibit No. 4, shows that no pipefitter-welders were hired by Pritchard for
the Ceredo job after June 14, 1954. Moreover , the, same exhibit shows that only
four persons were on the Ceredo job after June 14, 1954, and they were pipefitters,
not welders . , , ' - , '
9 The Trial Examiner ordered stricken from the record Lester 's testimony as to what
action Davis was supposed to have taken at the meeting. referred to.
10 The Trial Examiner has reference to their union membership , ,
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of Lester's testimony as to his conversation with Davis, the General
Counsel offered the testimony of Robert F. Rudman,il a former employee of Pritchard
and a member of Respondent Local 799 at times material herein.
Rudman, testified that he was with Lester in Touffi's confectionery at the time
the latter had the conversation with 'Davis. His, recollection of it was somewhat
different from that of Lester. His pertinent testimony in this regard was as follows:
Q. What did Mr. Lester say to Mr. Davis and what did Mr. Davis say to
Mr. Lester?
A. That's too far back. The only thing I understand was, Mr. Lester was
asking Mr. Davis why. he was not on the job, and Mr. Davis told Mr. Lester
in my presence that he had a' joh out there for him anytime he could get a
referral from the local union.
Nowhere in this testimony does Rudman mention Chapman and Switalski.
Without question the most controversial issue that developed at the hearing herein
arose out of Lester's testimony as to his conversation with Davis. The issue arose
under the following circumstances. While counsel for Respondent Local 799 and
Switalski was interrogating the witness Rudman on cross-examination he queried
him as to certain statements allegedly made by Davis and embodied in a sworn
affidavit given by Davis to a field examiner of the Board during the investigation of
the case at bar. After interrogating Rudman and other witnesses as to certain state-
ments by Davis in his ,affidavit that were contrary to their testimony, the Trial Ex-
aminer, upon his own motion; had the copy'of'the affidavit marked for identification
and placed it in evidence as a part of the record herein as Trial Examiner's Exhibit
No. 1. His reason for so doing was because of certain comments made by counsel
for Respondents Local 799 and Switalski to the effect that the General Counsel
was in effect suppressing important evidence that had developed in the course of
the investigation that were adverse to his case.12 While the Trial Examiner makes no
comment as to the statements of counsel for the above-named Respondents, both
at the hearing herein and in his brief, nevertheless he felt that since the issue had
been raised the Board should have an opportunity to see the document referred to
even though the Trial Examiner on his own responsibility placed the affidavit in
evidence; this'is not to;say, th3.t.he,svill, in arriving at the resolution of-the credibility
of the witnesses involved herein, either refer to it or rely upon•it. So that the record
may be clear as to this point, the Trial Examiner now states that he has not con-
sidered this controversial document in resolving the credibility of any witness. Suffice
it to say that he finds it is unnecessary to do so in resolving the credibility of any
of the witnesses who testified at the hearing herein, for the simple reason that the
testimony of other witnesses makes such reliance unnecessary.
After due consideration the Trial Examiner is inclined to and does accept Rud-
man's version of the conversation now at issue rather than Lester's. Several factors
have persuaded him in this regard. To begin with the record shows that (1) Davis
had nothing to do with the hiring or firing of employees on the job, which will be
discussed below; (2) at the time Lesteftalked to Davis the job was nearing comple-
tion and no pipefitter-welders had been hired 'by Pritchard for almost 3 weeks before
the conversation and none since June 14, 1954; (3) the testimony of Pipe Super-
intendent Brooks as to Davis' duties; (4) the testimony of H. E. Carr as to how em-
ployees were secured for the job; and (5) Lester's impression upon the Trial
Examiner at the time he testified.
Sam Brooks,13 pipe superintendent on the Ceredo job, testified credibly that he
alone had the authority to hire and_fire on the job in' his `department. He"further-
testified that Davis' job was to transfer the employees from one job to another as
"At the time Rudman testified, the Trial Examiner sustained an objection lodged by
counsel for Respondent Local 799 to certain portions of the testimony. But he did request
General Counsel to make an offer of proof by question and answer as provided for in rule
43 (c) of the Federal rules of procedure. The General Counsel's representative did so.
Near the close of the hearing the Trial Examiner, having heard for the most-part 'all of
the evidence in the, case, reconsidered his ruling iii this regard and accepted the General
Counsel's offer of proof as'to'Rudman's testimony. See page 767 of,-the- official transcript
of the record
12 The Trial Examiner rejects this, suggestion of counsel for Respondents Local 799
and James Switalski As far as the Trial Examiner is concerned, the General Counsel's
representative in the case at bar conducted himself in an ethical and straightforward
manner at all times during the hearing herein.
18 See supra as to Brooks.
JAMES SWITALSKI 943
they were needed, and to notify him if he needed additional employees. If more
men-were needed Brooks would discuss the matter with Carr and instruct him to
secure them. The record further shows that Carr did not at all times consult the
business fagent of Respondent Locak799 when he 'needed- employees. - For example;
Wilks went out to the job site and asked for and got a job without even talking to
Carr, but went directly to Brooks who hired him on the spot. L. H. Black, one of
the insurgents, was hired at the job site without any assistance from either Respond-
ents Local 799 or Switalski. In passing, the Trial Examiner desires to point out that
insofar as the substantial, reliable, and probative evidence in this record is concerned
Black was never removed from the detrimental list.14 As a matter of fact his name
was on the list submitted to U. A. headquarters in Chicago by Henderson, secretary-
treasurer of Local 799, on February 5, 1954, and on the U. A. list as indicated in its
letter to Henderson dated April 1, 1954.
Another factor that has carried some weight with the Trial Examiner in resolving
the issue as to the need of pipefitter-welders on the Ceredo job at the time Lester
talked to Davis is the fact that Grass and McGehee who testified at the hearing herein
were laid off by Pritchard on July 2, 1954, which the Trial Examiner is convinced
and finds was the date that Lester and Davis had their conversation in Touffi's.
As the Trial Examiner sees it, the primary purpose of the testimony of Lester and
Rudman as to Lester's conversation with Davis in Touffi's confectionery on or about
July 2, 1954, was to show that Davis was a supervisory employee within the meaning
of the Act, and thus his statenients'toLester were,binding'upon Pritchard;"and'thereby'
establish an illegal practice or arrangement between Pritchard and Respondents Local
799 and James Switalski. The Trial Examiner has carefully considered all of testi-
mony in this regard in the record as well as the contention of the parties in their briefs
and he is convinced that the record as a whole does not support the General Counsel's
contention. As he sees it, Davis, by virtue of being one of the first members of Local'
799 on the job, was through ,the general practice in the trade given the title of "Gen-
eral Foreman" when the number of employees reached 9 or more. Who made the
selection is not shown in the record. Even with such a high-sounding title, he did
not, according to Superintendent,Brooks, have the right to hire or fire. These rights
were4lodged,'in-'Brooks alone. - In the, circumstances, the -Trial Examiner" is of',th'e,,,
opinion that a preponderance of the substantial, reliable, and probative evidence 'in
the light of the whole record does not support the General Counsel's contention that
Davis was a supervisory employee within the meaning of the Act, and he so finds.
The record further shows that though Lester arrived in Huntington, West Virginia,
on or about May 10 or 11, 1954, he never at any.time material herein went near the
Pritchard job at Ceredo. Again, an examination of his testimony shows that he
never heard of Sam Brooks, the pipe superintendent on the job, until the first day
of the hearing herein. By the same token Brooks testified that he had never heard
of Lester until a year or so after he had left the job at Ceredo, when a field examiner
of the Board called upon him at his home in Wichita, Kansas, while the case herein
was under investigation.
As indicated above, one of the witnesses called by the General Counsel was George
Wilks, who was a member of Respondent Local 799's executive board from January
3 to around July 23, 1954. In the course of his testimony he testified that he told
Chapman to save a job for Lester sometime around the latter part of July 1954, and
that at the time he understood that there were two welding jobs open at the Ceredo
job. However, when he went to work the next morning and made inquiry in this re-
gard-he:was informed by the welding inspector- that no,jobs were open and-that he
had quit making-welding tests. Wilks'-testiinony-is supported'by Geneial'Coiinsel's
Exhibit No. 4, which shows that no pipefitter-welders were hired by Pritchard for the
Ceredo job after June 14, 1954.
In the circumstances, the Trial Examiner credits Wilks' testimony and finds that
no pipefitter-welder jobs were available at Pritchard's, Ceredo, West Virginia, job
after June 14, 1954.
Now back to the role that L. H. Black plays in the incidents involved herein. Black
was hired by Pritchard on or about March 29, 1954. He was one of the insurgents.
Contrary to,the'contention of the;General Counsel-in his;brief and,upon,the record, the
Trial Examiner finds that (1) Black was one of the insurgents; (2) he was tried and
convicted by the executive board of Local 799, January 28, 1954, and their action in
this regard was approved by the Local on January 29, 1954; (3) he went out to the
Pritchard job at Ceredo and was hired by management on his own; and (4) there is
no substantial evidence that Respondents ever at any time interfered with his em-
ployment with Pritchard.
14 This statement is in error Black was removed from the "Detrimental List" about
the same time Lester was
;944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
In the circumstances the Trial-Examiner, finds that the contention of the General
Counsel as to Switalski and Local 799 is not supported by the _ substantial , :reliable.
and probative evidence when considered in the light of the record as a whole.
The Trial Examiner is not unmindful of Chapman 's testimony as to the role of
,Switalski herein, which to say the least has caused him_ no end of concern , but when
one looks at the other side of the coin, speculation 'steps into the picture .. Findings
and-conclusions of law cannot and should not be predicated on suspicion , speculation,
and the like . They must be based on substantial , reliable, and probative evidence in
the light of -the record considered as a whole.
Consequently the- Trial , Examiner recommends the dismissal of the allegations in
the complaint as to James Switalski and Local 799.15
`IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Local 392, set forth iii section III, above , occurring
in connection with the operations of Carrier Corporation , not named 'as a Respondent
herein,'but all parties stipulated at the hearing that Carrier was engaged in inter-
state commerce as fully described in section I, above, have a close, intimate; and
substantial relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent Local 392 has engaged in and is engaging in certain
unfair labor practices affecting commerce, the Trial Examiner shall recommend that
it cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that Respondent Local 392 has violated Section 8 (b) (1) (A)
and,(2 ) of the Act by maintaining an oral contract which requires membership in
Respondent Local 392 as a condition of employment and which compels Carrier
Corporation , a Delaware corporation , to employ only welders and pipefitters who are
members in good standing in Respondent Local 392.
It has also been found that Respondent Local 392 attempted to cause and did
cause Carrier Corporation to discharge William C. Lester because of his being on the
"Detrimental List" of Local Union No. 799, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada , AFL-CIO. It will be recommended that the Respondent cease and desist
from such activity , and in addition it will be recommended that the- Respondent Local
392 make whole William C. Lester by payment to him of a sum of money-he would
have earned as wages from the date of the discrimination against him, May 10, 1954,
to the date of the completion of Carrier Corporation 's job at the H & S Pogue
Company, Cincinnati, Ohio.
The substantial , ' probative , and reliable evidence considered- in the light of the
whole record carries with it the distinct possibility that efforts will be made to extend
the Respondent Local 392's practices which the Trial Examiner has found to be
violative of the Act to other work in the territorial jurisdiction of the Respondent Local
392: In order to make effective the preventive purposes of the -Act it will be recom-
mended that the remedial order apply , to the employer .in this case. ,
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
I Carrier Corporation , a, Delaware , corporation , is engaged in commerce within-
the meaning of Section 2 (6) and (7) of the Act.
2. United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO, Locals 392 and 799,
are labor organizations within the meaning of Section 2 ( 5) of the Act.
3. By entering into and maintaining in effect an understanding or agreement be-
tween the Respondent Local 392 and Carrier Corporation conditioning the hiring of
pipefitters-welders at the installation of air conditioning equipment at the H & S
Pogue job in Cincinnati, Ohio, upon their membership in and clearance from the
Respondent Local 392 in the form of a referral slip, or otherwise , the Respondent Local
is The Trial Examiner sees no reason to cite ad infinitum countless Board Decisions and
Orders in this regard. •
SWIFT & COMPANY REFINERY 945
392 has attempted to cause and has caused Carrier Corporation to discriminate against
its employees, particularly William C. Lester, in violation of Section 8 (a) (3) of
the Act, and thereby did engage in unfair labor practices in violation of Section 8
(b) (2) of the Act.
4. The unfair labor practices found herein are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
5. Respondents Local 799 and James Swita ski have not engaged in unfair labor
practices within the meaning of the Act with respect to William C. Lester.
6. By causing Carrier Corporation to discriminate against William C. Lester in
violation of Section 8 (a) (3) the Respondent Local 392 has engaged in unfair labor
practices in violation of Section 8 (b) (2) of the Act.
7. The Respondent Local 392, by the aforementioned acts, have restrained and co-
erced employees in the exercise of the rights guaranteed in Section 7 of the Act,
and did thereby engage in and are engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
Swift & Company Refinery and United Packinghouse Workers
of America , AFL-CIO, Petitioner . Case No. 10-RC-3727. March
^09, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Hugh Frank Malone,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Murdock and
Rodgers].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
1 The hearing officer referred to the Board the Intervenor' s motion at the hearing to
dismiss the petition on the ground that the Petitioner is fronting for a labor organization
which is not in compliance with Section 9 of the Act The recoid shows that Local #142,
affiliated with the l'etitionci, which formerly iepreseuted the Employer's employees, has
not been in compliance since Decenibei 31, 1904 The record further shows that, on
November 4, 1954, after Local #142 lost an election in the instant plant , the Petitioner
appointed an administrator to handle the affairs of Local #142 and that since that date
Local #142 has had no officers or members, conducted no meetings , collected no dues,
processed no gi ievances, nor in any other way functioned as an active labor organization
In view of the foiegoing, the fact that the administrator's appointment has never been
formally ievoked and the fact that the former members of Local #142 have never been
issued withdrawal cards as required by the Petitioner' s constitution does not preclude
our finding that Local #142 is no longer in existence Accordingly, we find that Local
#142 is defunct and that, consequently, its noncompliance is no bar to Petitioner's right
to maintain this petition on its own behalf Ozeik Manufacturing and Supply Cciepany,
108 NLRB 1470
2 Local #51, National lirotheihood of Packinghouse Workers (Independent), herein
called the Intervenor, was permitted to intervene on the basis of its contractual interest
117 NLRB No. 1.,6
423 7 84-07-vol 117- 61