Local 369, International Hod Carriers, Etc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1209 (N.L.R.B. 1964)

LOCAL 369, INTERNATIONAL HOD CARRIERS, ETC. 1209
whole by payment to each of a sum of money equal to that which he would normally
have earned as wages from the date of the discrimination to the date of the closing
of the Anderson plant , less net earnings during said period , and in the manner pre-
scribed by the Board in F. W . Woolworth Company, 90 NLRB 289, and with interest
on the backpay due in accordance with Board policy set out in Isis Plumbing &
Heating Co., 138 NLRB 716.
As to the posting of a notice , the Trial Examiner agrees with General Counsel
that the policy set out by the Board in Darlington Manufacturing Company, et al.,
139 NLRB 241 , be followed . It will therefore be recommended that such notices be
published in local newspapers and mailed to the Respondent 's former employees.
In view of the serious and extended nature of the Respondent's unfair labor prac-
tices it will be recommended that it cease and desist from in any manner infringing
upon the rights of employees guaranteed by Section 7 of the Act.
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
1. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2 ( 5) of the Act.
2. By discriminating against employees as to tenure of employment and job
assignments and to discourage membership in an activity on behalf of the above-named
labor organization , the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act , the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Local 369, International Hod Carriers , Building and Common
Laborers Union of America, AFL-CIO [McCloskey Construc-
tion Corp .] and James Lloyd. Case No. 92-CB-676. June 30,
1964
DECISION AND ORDER
On May 6, 1964, Trial Examiner Thomas N. E-essel issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in unfair labor practices as alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief.
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 [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's exceptions and brief, and
147 NLRB No. 163.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record in this case , and hereby adopts the findings, conclu-
sions, and recommendations , with the modifications herein indicated.'
[The Board dismissed the complaint.]
2 Although we agree with the Trial Examiner that the complaint herein should be dis-
missed , we do so on the ground that the General Counsel has not established by a clear
preponderance of the evidence on the record as a whole that the Respondent caused the
Employer to, discharge or lay off the six employees for reasons of membership in foreign
locals. In such circumstances, we need not rule on Respondent's motion to have the Board
disregard the General Counsel's exceptions in this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed October 11, 1963, by James Lloyd, an individual, against
Local 369, International Hod Carriers, Building and Common Laborers Union.of
America, AFL-CIO, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board; herein called the Board, by the Regional Director for
the Twenty-second Region, issued his complaint dated November 27, 1963, alleging
that the Union had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b) (2) and 8(b) (1) (A) and Section 2(6)
and (7) of the National Labor Relations Act, as amended, herein called the Act.
The Union's answer denies the allegation of statutory violation in the complaint.
Copies of the complaint, the charge, and a notice of hearing were duly served upon
the parties. Pursuant to said notice, a hearing was held before Trial Examiner
Thomas N. Kessel at Trenton, New Jersey, on January 27 and 28 and February 11,
1964. The General Counsel and the Union were represented at the hearing by
counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence was afforded all parties. After the close of the hearing the
General Counsel and the Union filed briefs which have been duly considered.
Upon the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
McCloskey Construction Corp., herein called McCloskey, is a Delaware corpora-
tion engaged in construction work in several States. It is alleged and admitted that
in the year preceding issuance of the complaint McCloskey performed construction
work valued in excess of $22,000,000 of which work valued in excess of $3,000,000
was performed within States other than Pennsylvania where McCloskey maintains
its principal office and place of business. I find that McCloskey is an employer en-
gaged in interstate commerce within the meaning of the Act and that the Act's
purposes will be effectuated by the Board's assertion of jurisdiction in this case over
its operations.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership McCloskey's
employees.
M. THE ALLEGED UNFAIR LABOR PRACTICES
McCloskey at times relevant was erecting for the State of New Jersey at its capital
city, Trenton, a building known as the Public Works Health and Agricultural Build-
ing., The laborers on the job were represented by the Union which has a contract
with McCloskey requiring membership in the Union as a condition of continued
employment. Newly hired laborers were required to become members following
the eighth day of their employment. On October 2, 1963, McCloskey discharged six
employees. The complaint alleges that the Union on that day caused or attempted
to cause McCloskey to discharge these employees "because of said lack of member-
ship" in the Union and thereby violated the Act. The motivation plainly ascribed
'A stipulation from the parties received after the close of the hearing shows that con-
struction of this building was with State and Federal funds provided by the Hill-Burton
Act.
LOCAL 369, INTERNATIONAL HOD CARRIERS, ETC. 1211
by the complaint to the Union for its conduct in causing the foregoing discharges
was modified by statements of counsel for the General Counsel at the hearing and
in his brief. Thus it is now claimed that the Union sought the discharge of the
employees not for their lack of membership in the Union, but because they had
been members of sister or "foreign" locals of the Laborers in localities other than
Trenton, New Jersey, and had subsequently been admitted to membership or were
awaiting admission to membership in the Union by transfer. The Union's primary
defense is exclusively factual. It maintains that it had not sought the discharge
of the six employees, that, it had done nothing to cause this action, and that Mc-
Closkey alone for its special reasons decided to get rid of them.
Several witnesses for the General Counsel testified that the Union's business agent,
David Murray, had ordered McCloskey's superintendent, John J. Collins, to get
rid of the "out-of-town" employees on the job, meaning thereby, as the General
Counsel claims, to discharge those employees who before receiving employment from
McCloskey had been members of other locals of the Laborers, and that the Union
had designated the particular employees to be discharged. On October 1, 1963,
Murray discussed with Collins in the latter's office the layoff that day of two em-
ployees (not the six alleged by the complaint to have been discriminatorily. laid off
on October 2, 1963). According to Collins, when the starting whistle on the job
blew at 8 a.m., on October 2, no laborers started working. Murray was present at the
time and Collins conferred with him and Hadley Rowe, the laborer foreman, about
putting one of the two men laid off the day before back to work. Murray said this
would not be necessary as he would himself find another job for the man. At this
point a load of wet concrete arrived and Collins obtained Murray's approval for the
laborers to spread the concrete. Murray, however, stipulated to Collins that he was
not to order any more concrete "until the out-of-town men were removed from the
job," and warned that nobody would return to work until these out-of-towners were
removed. He thereupon drove away in his automobile. Collins secured Richard
Adkins, the Union's steward, and asked who were considered out-of-town men.
Adkins claimed ignorance. Collins pointed to a group of laborers and again asked
for Adkins' opinion. Adkins indicated one named Tiegle. Collins suggested that all
the laborers but Tiegle start working and that Adkins and he should contact Murray
to have him identify the out-of-town men on the job. Adkins came to the office
and he and Collins through telephone extensions held a three-way conversation
with Murray. Collins heard Adkins and Murray specify the six employees named in
the complaint to be eliminated as out-of-towners. That evening all six were paid off
and discharged by McCloskey. The next morning all the laborers remaining on the
job resumed work. Other laborers were hired to replace the six who had been laid
off. Some of these six have been reemployed. Collins claimed that not all were
recalled because he had to get clearance from the Union for them to work in view
of the fact that they had been ordered from the job by the Union. He implied
that he was concerned with a work stoppage if they were rehired without such
clearance.
The aforementioned Foreman Rowe testified that he had decided on October 1 to
lay off two laborers because he was overstaffed. He thereupon informed Steward
Adkins and gave him the names of the two laborers he had selected for layoff.
About then Murray came to the job and was told by Rowe about the layoffs.
Murray first asked that the layoff of one of the men be postponed for a couple of
days and Rowe agreed. Then Murray withdrew this request and declared he would
find another job for the man. At 4 p.m. Rowe notified the two laborers of their
layoffs. Murray appeared and expressed resentment over the action. Rowe left.
The next morning Rowe ordered the laborers to start working at 8 o'clock, but they
refused and looked to Murray who was present for direction. Subsequently a con-
crete truck arrived and Collins obtained Murray's consent for the laborers to work
with the concrete. Rowe claimed he heard Murray tell Collins "go ahead and get
rid of this concrete, and after this I'm going to shut this job down until you get rid
of all these out-of-town men." Later that day, Collins told him which employees
to lay off and Rowe accordingly gave them their notices.
Charging Party James Lloyd, one of the six laborers laid off on October 2, testified
that on that date he heard Murray tell Collins that "all the out-of-towners would
have to go."
William Buckhalter, one of the six laborers laid off, testified that he was notified
of his layoff on October 2 by Adkins. He claimed that he was informed by Adkins
that this action was "orders from the Union." At the time he was a member of the
Union. His employment with McCloskey had started on May 14, 1963. Before
then he had been a member of Laborers Local 332 of Philadelphia and had trans-
ferred his membership to the Union on April 30, 1963, before starting on his job.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He acknowledged he had no trouble accomplishing the transfer . He has lived for
years in Williamstown, New Jersey, approximately 50 miles from Trenton. About
a month after his layoff, Buckhalter sought reemployment at the McCloskey job and
was told by Murray that he had no objection to his employment in Trenton.
William Glover, another of the six laid-off laborers, testified that he was notified
by the Union's steward of his layoff. He did not indicate anything else said by the
steward at the time . Glover's employment with McCloskey began on May 27,
1963. He was, and still is, a member of Laborers Local 332 of Philadelphia. He
was informed by the secretary-treasurer of the Union when he started work that the
Union had an agreement with Local 332 whereby each agreed to permit the other's
members to work within their respective jurisdictions.
James Lloyd, the aforementioned Charging Party, testified that 2 or 3 weeks after
his layoff on October 2 he spoke to Murray about getting back his job and that he
was told he could return only if Collins were to get rid of Rowe. Lloyd's employ-
ment at the McCloskey job started on August 20, 1963. At the time of his layoff
he was a member of the Union having transferred to it from Laborers Local No. 47.
The location of the latter local is not shown by the record.
Fred Tiegle , also one of the six laid-off laborers , started to work for McCloskey
on April 19 , 1963. Tiegle is a resident of Philadelphia and was a member of Local
332 when hired by McCloskey. He transferred his membership to the Union on
April 16 , 1963, and was its member when laid off. Tiegle claimed he went back to
the job about three times after his layoff to seek work but was not employed. On
one occasion he was told by a person named Henderson , who appears to have re-
placed Rowe as foreman ,2 that no help was needed.
Jesse Martin , one of the group of laborers laid off on October 2, had been a mem-
ber of Laborers Local 456 of Washington, D.C., when he was hired at the McCloskey
job in Trenton on April 5, 1963. At the time of his layoff he had not transferred
his membership to the Union, but this was accomplished about 2 weeks after the
October 2 layoff..
Martin related that he was present at the jobsite on October 2 when the work
stoppage occurred and that he had heard Murray tell Rowe he was trying to have
him ousted as foreman . He claimed also to have heard Murray tell Collins or Rowe
that he wanted "all the out-of-towners off the job." Martin testified that the day
following his layoff he went to the union hall and spoke to Murray. The latter re-
fused to speak to Martin , because, as Murray assertedly declared , Martin was one of
the out-of-towners on the McCloskey job forcing other members of the Union out
of work and requiring others, numbering about 15, to work on different jobs.
Martin tried to explain he was a New Jersey resident but Murray was not persuaded
because he had an "out-of-town book." Martin acknowledged, however, that at the
same time Murray had also informed him that his layoff had been a mistake and
that he should go back to the job. A few days later Martin was again told by
Murray to go back to the job but advised the latter that he had some personal
matters he wished to attend to in Washington, D.C. One of these matters, about
which he did not inform Murray, was to obtain a transfer, from his Washington
local to the Union. Martin returned a week later and was directed by Murray to
see the Union's steward on the job about returning to work. He instructed Martin
to contact him if he had any difficulty. Martin went to Collins and was reemployed.
Martin further testified that in January or February 1963 he was present at the
union hall and heard Murray tell Rowe that the Union "didn't particularly want
to accept out-of-town men in the area because there were local men that was
unemployed."
William Fletcher, the last of the group of six employees laid off on October 2, did
not testify. The record shows that his employment with McCloskey began on July 3,
1963. At the time of his employment he was a member of Laborers Local 332, and
did not during his employment secure a transfer from this local to the Union.
James Lofton, a laborer presently employed by McCloskey, testified concerning
Murray's reluctance to permit his transfer of membership to the Union from Local
332 of Philadelphia where Lofton resided. He related that in August 1963 he had
sought employment with McCloskey in Trenton and had brought his "traveler's"
card and transfer papers from Local 332 to Murray. The latter would not accept
them and ordered Lofton from his office threatening to strike him with a club.
Lofton first testified that Murray gave no reason for his refusal, but with his
memory refreshed Lofton recalled that Murray had predicated his refusal on the
ground that he was from out of town. Lofton also recalled that Murray had ex-
pressed belief Rowe had sent for him and would not accept his transfer for this
$ Rowe was eventually, in December 1962, forced from his position as foreman.
LOCAL 369, INTERNATIONAL HOD CARRIERS, ETC. 1213
reason. Lofton further testified that he returned to Philadelphia and obtained the
help of Local 332's president who spoke to Murray by telephone and asked for an
explanation for the refusal to accept the transfer. Murray still would not state his
reasons. The president then spoke to the Union's secretary-treasurer, Gonzalez,
who directed Lofton to return and promised to accept his transfer. Lofton there-
after was told by Gonzalez that he would have to appear at the union hall each
morning before 7 o'clock to obtain work. Lofton protested the hardship of driving
to Trenton each day from Philadelphia at the risk of not getting work. He never-
theless paid his dues to the Union. He testified that his employment with McCloskey
did not begin until November. The record, however, shows Lofton's date of hire as
October 16. Within minutes after he started work Murray directed the steward not
to let Lofton stay on the job. Lofton went to Gonzalez who permitted him to re-
turn to the job. Apparently he has continued his employment for McCloskey with-
out interruption or interference.
Another General Counsel witness, Mathis Taylor, testified that he had been em-
ployed as a laborer by McCloskey in May 1963 and that after working 1 day the
Union's steward directed him and another laborer to get off the job. Taylor asked
for an explanation and' the steward simply told him the Union 's business agent had
declared they could not work . Taylor 's suggestion that he be permitted to join the
Union evoked the steward's response that "we got enough men in the hall with paid
up books that ain't working."
Adkins maintains a book to record payments from McCloskey as provided by the
labor contract with the Union for the employees' welfare fund. All laborers cur-
rently employed are listed in the book. Beside each employee 's name, with certain
exceptions , is a designation entered by Adkins showing his membership in the Union
or other local . No designations appear beside the names of five of the six employees
herein involved who were laid off on October 2. An entry was made next to Glover's
name showing his membership in the Union . No designation appeared for one other
employee not involved in the case . Adkins explained that the absence of entries for
these employees was due to his failure for 4 or more months to check their books to
determine their membership in the Union or other locals. The contract in evidence
provides for a 10-cent payment per hour worked by each laborer to the welfare fund.
These payments are not dependent upon membership in the Union or any local.
Nor is there any provision for separation or administration of the funds depending
upon the union affiliation of the employees in whose behalf the payments are made.
A summary of the Union's records reveals that on October 2 there were employed
as laborers by McCloskey, in addition to the six laborers herein involved, four others
who had acquired membership in the Union by transfer from other locals. All these
employees were hired by McCloskey in March or April 1963. As to one, E. W.
Holley, the record shows that he had joined his former local in March 1961, but does
not indicate the date of his transfer to the Union. With respect to another, W. Jones,
the record shows that he had joined his former local in October 1955, but indicates
no date when he transferred his membership to the Union. As to another, G. Lee,
the record does not show the date when he joined his former local but there is an
insertion in the Union 's summary indicating a transfer into the Union in October
1959. Concerning the fourth employee, B. Olinsky, the summary in evidence does
not state a date when he joined his former local, but contains an entry indicating
that he transferred into the Union in May 1962.
The foregoing summary also shows that after the October 2 layoffs of the six em-
ployees involved in this case McCloskey hired two laborers who acquired member-
ship in the Union by transfer from other locals. One is the aforementioned Lofton
whose date of hire is shown by the record to have been October 16, 1963, and
whose transfer from Local 332 to the Union was accomplished on September 3,
1963. Another is T. Matthews who was hired on October 9, 1963, and had trans-
ferred from Local 135 to the Union on April 15, 1963. In the same connection there
is to be considered the circumstance , already adverted to, with respect to Jesse
Martin who was reemployed by McCloskey about 2 weeks after his layoff on
October 2, 1963, and who in that intervening period transferred his membership
from Local 456 to the Union.
Murray denied ever requesting the layoff or discharge of any laborers on the
McCloskey job. He denied that he had requested the termination of the six em-
ployees laid off on October 2 and claimed that this was exclusively decided upon
and carried out by Collins. The action was brought on, he testified, by his in-
sistence that Rowe be removed from his position as laborer foreman, and Collins'
assurance that Murray's objections to Rowe's continuation as foreman would ade-
quately be met by the removal of the six laborers described by Collins as Rowe's
"henchmen ." Murray testified that his objections to Rowe as foreman had originated
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime before October 2. He had received complaints that Rowe was unduly
harassing the laborers under him, that Rowe was lending them money and collect-
ing unreasonable interest rates, and that Rowe was profiting from a dice game he
was running in the shanty reserved for the laborers. Murray claimed to have re-
ceived complaints about laborers losing their earnings in the game, and, assertedly,
was determined to stop this activity. He had pressured Collins before October 2 to
get rid of Rowe and had caused a work stoppage in August or September 1963 for
this purpose. Collins had then assured him that the conditions about which Murray
had complained were not the fault of Rowe but his henchmen. On October 2 Collins
informed Murray that the henchmen were responsible and that he would take care of
the matter soon. That same day, Collins spoke to him on the telephone and named
the six laborers who he said were causing the trouble on the job. He promised to
get rid of them immediately. Murray disclaimed knowing any of these persons at
the time.
Murray's version of the incident when he chased Lofton from his office was that
the latter had brusquely entered and imperiously demanded a transfer card, where-
upon Murray resentful of Lofton's manner had engaged in an argument with him.
When Lofton reached into his pocket Murray seized a stick, whereupon Lofton ran
from the office. Later, according to Murray, when he saw Lofton on the job the
latter apologized and shook hands and this closed the matter.
Concerning Lloyd, Murray testified he did not see him after his October 2 layoff
until Christmas when Lloyd came to the union office to pay his dues. Murray ex-
pressed surprise he had not returned to work and told Lloyd to see Adkins and to
inform him he was to find work for him.
As to Martin, Murray recalled that when the former came to the union office on
October 3 he expressed surprise that he was not working. When he was informed
Martin had been laid off he told him to go back to the job and to tell Collins to put
him to work. Murray claimed he also told Martin that if he were to see the other
employees who had been laid off with him he was to tell them the same thing .3
Murray denied Martin's testimony that he had told Rowe the Union did not want
out-of-town men employed in its area because local men were unemployed.
Adkins also testified that Rowe had abused the laborers under him and had main-
tained a gambling and loan shark operation. He related that Murray had sought
Rowe 's removal as foreman for the foregoing reasons weeks before October 2 and
that he had before then called a strike to compel this action. On that occasion
Collins had persuaded Murray that Rowe was not to be blamed for the complained-of
conditions and that he would straighten out the situation. Conditions, however, did
not improve. Adkins maintained that on October 2 he heard Murray tell Collins
that Rowe would have to be "busted" from his foreman's post, and Collins had
again insisted that the fault was not Rowe's but of his henchmen whom he would
eliminate. Later that day, according to Adkins, Collins called and asked him to
specify "all the guys that are not in your union." Adkins replied he was confused
by the request as all the laborers were in the Union. Then Collins named the six
laborers he wanted terminated. He called Murray by telephone and Adkins listened
to the conversation in which Collins specified the six laborers whose termination in
his opinion "should straighten this job out."
Adkins denied he had told Taylor he would refuse to admit him to membership in
the Union. He explained he had no authority to refuse any applicant' s admission.
All he knows about Taylor is that he worked I day and that he failed to return to
the job the next day after he had left to attend to some business.
Frank E. Gonzalez, the aforementioned Union's secretary-treasurer, testified that
in accordance with the constitutional requirement of the International Laborers Union
the Union admits to membership by transfer any member in good standing of another
sister local who applies. If a member of another local wishes to retain his member-
ship in that local the Union will still permit him to work in its territorial jurisdiction
without a transfer.
Mindful that the General Counsel bears the burden of proving the Union's cul-
pability in this case by the preponderance of the evidence, I am constrained to dis-
miss the complaint. Had the allegation of unlawful conduct stated in the complaint
been unmodified, I could not find a basis for a violation as to three of the six laid-off
employees for in fact they were members of the Union on October 2 and the causation
of their layoffs for nonmembership has been thoroughly disproved. The fact of
membership by three of the six employees laid off further implies that the non-
3 At the hearing the Union declared in the presence of Collins that it has no objection
to the employment by McCloskey of the six employees laid off on October 2.
LOCAL 369, INTERNATIONAL HOD CARRIERS, ETC. 1215
membership of the other three was not a reason for their termination .4 It would
seem more reasonable that the layoff of the entire group was due to a factor common
to all. In agreement with the General Counsel I find such common characteristic.
All six laid-off employees were former or present members of sister or foreign locals
of the Laborer's Union. However, contrary to the General Counsel, I do not believe
this common factor was the impelling reason for the layoff of these employees.
Four other employees were not laid off who had transferred from different locals
to the Union, and two new employees were hired shortly after the layoffs who trans-
ferred their membership from foreign locals to the Union. There is on evidence of
protest or opposition by the Union concerning the employment of these persons.
Moreover, Jesse Martin was encouraged, as I find, by Business Agent Murray to
return' to work despite his pending transfer of membership to the Union after his
October 2 layoff.
I proceed to factfindings which disclose the true reason for the layoffs. First,
I reject the testimony by Murray and Adkins that Collins had suggested the layoffs
as a means of correcting the complaints about Rowe and that Collins had selected
the six employees laid off as Rowe's henchmen. There is no need to detail the
evidence of Rowe's alleged gambling operations and moneylending activities for
whether he engaged in this conduct or not or whether the Union's agent was concerned
about them are not decisive considerations. Assuming that Murray and Adkins
were seriously disturbed about Rowe's abuses to the point where they led employee
work stoppages to force his removal, I cannot understand how they could possibly
have accepted Collins' proposal to lay off unknown henchmen as a means of eliminat-
ing these conditions. If, as they testified, Collins had made this proposal to them,
a likely response would have been a call for an explanation as to how the layoff-of
the henchmen would end Rowe's harassment of employees, his dice games and loan
sharking . I am convinced they demanded no such explanation because the proposi-
tion was never put to them by Collins. I credit his denial that he had ever made it.
I am convinced, in accord with Collins', Rowe's, Lloyd's, and Martin's testimony,
that on October 2 Murray had demanded the layoff of out-of-town employees and that,
as related by Collins, Murray had later that day specified the names of the six out-
of-towners he wanted terminated. The crucial question remains . what was meant
by the phrase "out-of-town employees."
I have already found that the Union was not concerned with the elimination of
employees who had present or past affiliations with other locals. For this reason,
and because "out-of-town" does not convey such implication, I am satisfied that the
phrase had a different meaning. On_ its face it connotes persons who lived outside
Trenton. However, as it cannot be determined from this record where all the laid-
off employees resided on October 2 there is added uncertainty as to the meaning of
the phrase. Martin lived in Trenton, Buckhalter lived about 50 miles away, Tiegle
lived in Philadelphia, and the place of residence of the other three is undisclosed.
One, fact, however, is certain . All six, regardless of residence on October 2, had
as members of other locals resided outside the Trenton area before receiving employ-
ment from McCloskey. I believe that what Murray had in mind when he referred
to out-of-towners was those who had come from these other areas to Trenton and
who were depriving union members who may have been local residents from jobs
with McCloskey in' Trenton. I am led to this belief by Martin's credited testimony 5
that Murray had said to him after the layoff that he was an out-of-towner who had
forced union members out of jobs, and that Martin had heard Murray tell Rowe
months before that he did not want out-of-towners employed by him because there
were local men unemployed.
I also believe that Murray associated these out-of-towners with Rowe whose re-
moval as foreman Murray had tried to accomplish weeks before October 2. Rowe
had come from Philadelphia and so had Buckhalter, Glover, Tiegle, and Fletcher.
Lloyd had worked under Rowe on five other McCloskey jobs. The fact that Martin
had come to Trenton from Washington, D.C., and appears to have had no connection
with Rowe may explain why Murray told him his layoff had been a mistake. My
opinion that Murray was opposed to the employment of laborers whom he asso-
ciated with Rowe is strengthened by Lofton's credited testimony that when Murray
refused to accept his transfer from Local 332 he indicated it was because Rowe
had sent for him.
* I perceive nothing in the failure by Adkins to note in his welfare book the member-
ship in the Union of five of the six laid-off employees which requires a different conclusion.
6In crediting Martin I have been influenced by his reluctance to cooperate with the
General Counsel by testifying willingly and forthrightly about circumstances which ap-
peared to disfavor the Union.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, I conclude that Murray was concerned about the deprivation by the out-
of-towners of jobs in Trenton for other laborers who had local residences and was
particularly aroused over this circumstance by the fact that these out-of-towners
were somehow connected with Rowe whom he disliked. His demand for the re-
moval of these persons was prompted by his resentment over the layoff by Rowe
of two local employees on October 1. I find that when Murray for these reasons
called the work stoppage of October 2 he did cause or attempted to cause a layoff
or discharge of the six employees named in the complaint. I do not, however, find
that any of the reasons which impelled his action were proscribed by the Act. Unlike
the precedents relied upon by the General Counsel,6 this case does not involve the
causation of employee terminations for reasons pertaining to union membership
or for any other reason which, had an employer been motivated thereby to discharge
employees, would have resulted in conduct violative of Section 8(a) (3) of the Act.
The Union's purpose in demanding the removal of the out-of-towners is more akin
to the reason asserted by the unions in those cases where with statutory impunity
they insisted on preferment in employment of persons with local residences.?
CONCLUSIONS OF LAW
1. McCloskey Construction Corp. is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 369, International Hod Carriers, Building and Common Laborers Union
of America, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The allegations of the complaint that the Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b)(2) and 1(A) of the
Act have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
6 Animated Displays Company, 137 NLRB 999; Ace Electric Co., 135 NLRB 498.
7 Bricklayers, Masons and Plasterers ' International Union, etc . (Plaza Builders, Incorpo-
rated ), 134 NLRB 751 ; Bricklayers, Masons and Plasters' International Union, Local
No. 2 (Wilputte Coke Oven Division , Allied Chemical Corporation ), 135 NLRB 323.
Teamsters Local Union No. 5, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America , Ind. and Hart-McCowan Foundation
Co., Inc. Case No. 15-CD-39. June 30, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, following a charge filed on December 9, 1963, by Hart-
McCowan Foundation Co., Inc., herein called Hart-McCowan or the
Employer, alleging that Teamsters Local Union No. 5, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Ind., herein called Teamsters or Respondent,
had violated Section 8(b) (4) (I)) of the Act. A duly scheduled hear-
ing was held before Hearing Officer Fred A. Lewis on March 10, 1964.
All parties appearing were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce evidence bearing
on the issues. The rulings made at the hearing are free from prejudi-
147 NLRB No. 158.