Local Union 136, Carpenters

National Labor Relations Board - Board Decisions

Jun 26, 1967

165 N.L.R.B. 1040 (N.L.R.B. 1967)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union 136, Muskingum Valley District
Council of the United Brotherhood of
Carpenters and Joiners of America,
AFL-CIO, and its agent Harold Jackson and
Roy W. Thomas. Case 8-CB-1049
June 26, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On March 23, 1967, Trial Examiner Arthur
E. Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices 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 brief in support of its exceptions, and
Respondents filed a brief in answer to the exceptions
and in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. Accordingly, the
rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the
exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to
the extent consistent herewith.
1. We agree with the Trial Examiner's findings
that the record fails to substantiate the General
Counsel's contention that Respondents violated
Section 8(b)(1)(A) and (2) by maintenance of an
unlawful union-security provision,' by maintaining a
practice or arrangement whereby registration for job
referrals or actual referrals were contingent upon
union membership or payment by nonmembers of all
or part of regular initiation fees, and by failing to
post notices in conspicuous places informing
employees as to all provisions relating to the
i The applicable union•secunty clause provides as follows.
It shall be a condition of employment that the employers of
any employee covered by this agreement who are members of
the United Brotherhood in good standing on the effective
date of this agreement shall remain members in good
standing, and those who are not members in good standing on
the effective date of this agreement, or who are hired on or
after its effective date, shall on the seventh day following the
beginning of employment (whichever is later) become and
remain members in good standing
The Union may notify the contractor and employee in writing
of any default on the part of an employee to pay said initiation
functioning of the applicable hiring hall
arrangement.
2. However, we disagree with the Trial
Examiner's failure to find that Respondents violated
Section 8(b)(1)(A) by threatening Charging Party
Thomas with expulsion from the Union in the event
he carried out his stated intention of filing unfair
labor practice charges before the Board. In this
connection, the record shows that on May 6, 1966,
Respondent Jackson, business representative of
Respondent Local 136, and Thomas had several
altercations over Thomas' complaint that Jackson
was improperly denying him job referrals. On one
such occasion, according to Jackson's own
testimony, Thomas said he "was bringing charges
against me [Jackson] to the National Labor
Relations Board," whereupon Jackson admittedly
replied, "if you do go through the proceedings, you
[Thomas] might as well bring your book in here and
lay it on the table. . . ." In the circumstances,
Jackson's retort could only have been taken by
Thomas as an indication that his membership in
Respondent Local would be nullified should he elect
to invoke his statutory remedies. Although it is true
that Thomas, in the course' of the argument, used
profane language and directed abusive remarks to
Jackson, Thomas' action hardly justified Jackson's
threat, which specifically related to Thomas'
contemplated action before the Board, and as such
constituted a clear infringement upon rights
protected by the Act. A labor organization violates
Section 8(b)(1)(A) by "expelling [an employee
member] for filing unfair labor practice charges,"2
or by otherwise "resorting to unlawful means to
prevent or restrict employees from filing charges."3
(Emphasis supplied.) We accordingly conclude that
Respondent violated Section 8(b)(1)(A) by
threatening Thomas with expulsion should he invoke
Board processes by filing unfair labor practice
charges.
3. The Trial Examiner also found no record
support for the allegations in the complaint that
Respondents discriminatorily denied Roy Thomas
referral under the applicable hiring hall
arrangement. In so finding, he viewed the evidence
as failing to disclose that Thomas was denied
referral to any job to which he was entitled. Although
we agree with the Trial Examiner that Thomas was
fees and membership dues of the Union and if said employee
has not paid said initiation fees and dues within seven days
from the receipt of said written notice, the Employer shall
discharge such employee, provided membership was
available under the same terms and conditions applicable to
other members Further, all employees who fail to maintain
their union membership as above provided shall be similarly
discharged by the contractor
2 Cannery Workers Union of the Pacific, affiliated with the
Seafarers International Union of North America, AFL-CIO (Van
Camp Sea Food Co), 159 NLRB 843, 845
1 Local 138, International Union of Operating Engineers,
AFL-CIO (Charles S Skura), 148 NLRB 679, 682.
165 NLRB No. 139
LOCAL UNION 136, CARPENTERS
not available for employment, as of January or early
February 1966, when, pursuant to uniformly applied
procedures, his name was removed from the Local
136 job registration list, we do not agree with the
Trial Examiner's failure to find that, following his
reregistration on April 28, 1966, Thomas was
discriminatorily denied referral to a project on which
the Frank Vlack Company, Inc., was then engaged.
In reversing the Trial Examiner's finding in this
regard, we rely upon the following:
a. The exclusive hiring arrangement: We disagree
with the Trial Examiner's conclusion that
Respondent Local was not party to an exclusive
hiring arrangement. At all times material herein, a
collective-bargaining agreement existed between
Muskingum Valley Building Trades Employers
Association (MVBTEA), a multiemployer bargaining
organization, and the Muskingum Valley District
Council of the United Brotherhood of Carpenters
and Joiners of America, a labor organization
consisting of five carpenters locals, including
Respondent Local 136. Even though the various
constituent locals purportedly dissolved the District
Council, so as to enable the locals to conduct
collective bargaining on a several, rather than joint,
basis with MVBTEA, the record establishes that all
participating employers and the various locals
nevertheless continued to give effect to and regard
themselves bound by the hiring arrangement which
finds its source in the aforesaid collective-bargaining
agreement.
There is no dispute concerning the nature of the
hiring arrangement or practice administered by
Local 136 with which we are here involved. Thus,
the employers, including Frank Vlack Company
which individually executed the MVBTEA contract
in May 1966, are required to direct all manpower
requests to the Local, except that they may hire from
any source after 24 hours has elapsed from the time
any unfilled job order is placed. Referrals are made
from listings of employees available for work
maintained by the various locals. Employees
requested by name are entitled to priority, and the
employer may reject any applicant referred by the
Local. Although there is some evidence that certain
members of MVBTEA have occasionally engaged in
direct jobsite hiring, in each instance clearance was
obtained from Respondent Local, and there is no
evidence that Respondent Local assented to any
right in the participating employers to circumvent
the Local in their hirings. From the foregoing, it is
plain that the employers regarded the various locals
or the District Council as the exclusive source of
labor for a 24-hour period, and that the locals
responsible for administering the registration lists
and making referrals possessed control over the
'Local 25, Marine Division , International Union of Operating
Engineers, AFL-CIO (American Dredging Company), 149 NLRB
519, 535, International Longshoremen 's & Warehousemen's
Union, Local No. 12 (Donald D Wilson), 155 NLRB 1042' United
1041
Employer's hirings within said periods of time. In
finding that said practice constituted an exclusive
24-hour hiring hall arrangement, we disagree with
the Trial Examiner that the occasional onsite
hirings, as to which the Local always received
notification, substantially infringed upon the Local's
authority and control over job placement during this
period. Accordingly, as we are satisfied that the
above-mentioned employers and Respondent Local
136 were parties to an exclusive referral
arrangement or practice, it is clear that Respondents
had a statutory duty to maintain and give effect to
that system without discrimination."
b. Discrimination: Roy Thomas had been a
carpenter by trade for about 10 years and a member
of Respondent Local for about 7 years prior to the
events here in issue. Respondent Jackson was
responsible for making the referrals and otherwise
maintaining the instant hiring hall system. For
several years, Thomas and Jackson had been
political rivals within Local 136. Thomas, on several
occasions, opposed Jackson as a candidate for the
office of business representative and differed with
Jackson on numerous occasions concerning internal
policy of the Local. Thomas also had periodically
accused Jackson of mishandling the referral system,
and had filed charges with the International alleging
that Jackson failed to perform the duties of his office
properly.
It also appears that in late April 1966, several of
Respondent Local's representatives, including
Jackson, were of the impression that Thomas, along
with another member, Bucy, had complained to a
United States Congressman concerning operation of
the hiring hall. Respondents opposed these efforts of
Thomas and the others in this regard and offered job
referrals to induce Bucy to abandon efforts to enlist
such congressional assistance. Shortly thereafter, on
May 6, 1966, and as related above, Thomas carried
his protest concerning his failure to receive job
referrals to Jackson, and on announcing his intention
to file certain unfair labor practice charges, was
threatened by Jackson with loss of union
membership.
Shortly after the May 6 confrontation between
Jackson and Thomas, and in mid-May, a
superintendent of the Frank Vlack Company called
Jackson requesting carpenters for Vlack's Tectum
project. Vlack requested one carpenter for
immediate referral and the second for the following
week. Jackson thereupon referred Joe Adams. At
the time of said referral, Thomas was properly
registered, and examination of the registry shows
that Thomas' name appears above that of Adams, a
fact which, under the established hiring procedure,
entitled Thomas to preference over Adams in filling
Brotherhood of Carpenters & Joiners of America, Local 1281,
AFL-CIO (Raber-Kief, Inc), 152 NLRB 629, and cases cited at
fns 2, 4, and 5 thereof.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Vlack job order. As Thomas had not been
rejected, and Adams was not requested, by Vlack, it
is plain that Jackson departed from customary
procedures in bypassing Thomas.
The Trial Examiner, in finding that there was no
evidence of a referral when Thomas was available
for work, apparently overlooked the mid-May Vlack
referral, and the relative position of Adams and
Thomas on the registry list at that time. Nor can we
agree with the Trial Examiner's finding that Thomas
was not then available for work; it is conceded that
he was properly registered. And Thomas' need of
work was clearly shown by his vigorous efforts, only
a few weeks previously, in backing his referral
demands with threats of filing unfair labor practice
charges and of seeking the aid of a United States
Congressman. Against this background, and as
Jackson apparently made no effort to reach Thomas
in connection with the Vlack referral, we find that
Thomas was available for work at the time of the
referral of Adams to the Vlack project.
Finally,, we are also satisfied that the evidence
amply demonstrates that the refusal to refer Thomas
in this instance was, as the General Counsel
contends, a reprisal for Thomas' threat to file unfair
labor practice charges and his persistent opposition
to the leadership of Respondent Local. This is
particularly evidenced by Respondents' opposition
to the intervention of the Congressman, the timing of
the denied referral in relation to the May 6 incident
in which Thomas was unlawfully threatened with
loss of membership, and the absence of any
reasonable explanation for Jackson's departure from
customary hiring procedures. Accordingly, we find
that Respondents violated Section 8(b)(1)(A) and (2)
by discriminating against Thomas in mid-May 1966
with respect to the Vlack job referral.
THE REMEDY
Having found that Respondents have engaged in
unfair labor practices, we shall order that they cease
and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the
Act. Included will be a requirement that Respondent
Local Union 136 make whole Roy W. Thomas from
mid-May 1966 for any loss of earnings suffered by
him as a result of the discrimination practiced
against him.5 Such payments shall be equal to the
amount of wages he would have earned but for the
discrimination practiced against him by
Respondents, as computed in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289, together with interest thereon at the rate
of 6 percent per annum, as provided in Isis Plumbing
& Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Frank Vlack Company, Inc., and members of
the Muskingum Valley Building Trades Employers
Association, are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
or an industry affecting commerce within the
meaning of the Act.
2. Local Union 136, Muskingum Valley District
Council of the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. Harold Jackson is an agent of Respondent
Local Union 136, Muskingum Valley District Council
of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO.
4. By threatening Roy W. Thomas with loss of
union membership if he should file an unfair labor
practice charge, Respondents violated Section
8(b)(1)(A) of the Act.
5. By attempting to cause and causing Frank
Vlack Company, Inc., to discriminate against Roy
W. Thomas in violation of Section 8(a)(3) of the Act,
Respondents have violated Section 8(b)(1)(A) and (2)
of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents,
Local Union 136, Muskingum Valley District Council
of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and its agent Harold
Jackson, officers, other agents, and representatives,
shall:
1. Cease and desist from:
(a) Threatening to expel employees from the
Union or otherwise coercing and restraining them in
order to discourage them from filing unfair labor
practice charges with the Board.
(b) Causing or attempting to cause Frank Vlack
Company, Inc., or any other employer, to
discriminate against Roy W. Thomas or any other
employee or applicant for employment in violation of
Section 8(a)(3) of the Act.
(c) In any other manner restraining or coercing
employees in the exercise of their rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds necessary to effectuate the purposes of
the Act:
In accordance with out usual practice, we shall not impose 490, International Hod Carriers Building and Construction
any personal backpay liability upon the Respondent, Harold Laborers Union, AFL-CIO (Dickmann.Pickens•Bond Construction
Jackson, business representative of the Union. See, e g , Local Company), 130 NLRB 380, 381, fn 2.
LOCAL UNION 136, CARPENTERS
(a) Make whole Roy W. Thomas for any loss of
earnings suffered as a result of the discrimination
against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify Frank Vlack Company, Inc., and other
employers who use Respondents' hiring hall as an
exclusive primary source for securing carpenters
and millwrights, and mail a copy of such notice to
Roy W. Thomas, that Roy W. Thomas will have full
use of the hiring hall facilities without discrimination
in connection with referrals for employment.
(c) Post at its offices, meeting halls, and hiring
halls, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 8, after
being duly signed by Harold Jackson as a
representative of Respondent Union, be posted
immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Sign and forthwith return sufficient copies of
said notice to the Regional Director for Region 8 for
posting by Frank Vlack Company, Inc., if willing, at
its business offices and construction sites where
notices to its employees are customarily posted.
(e) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
6 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 "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES AND MEMBERS,
OFFICERS, REPRESENTATIVES, AGENTS, AND
EMPLOYEES OF LOCAL UNION 136, MUSKINGUM
VALLEY DISTRICT COUNCIL OF THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO
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 threaten any employee with
loss of union membership for filing, or declaring
his intention to file, unfair labor practice
charges.
WE WILL NOT cause or attempt to cause
discrimination in the hire and tenure of
employment of Roy W. Thomas, or any
1043
employee, by refusing to refer him for work by
reason of his filing unfair labor practice charges
with the Board, his declared intention to do so,
or his otherwise having engaged in the exercise
of rights protected by Section 7 of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
protected by Section 7 of the Act.
WE WILL make Roy W. Thomas whole for any
loss of pay suffered by him as a result of the
discrimination against him.
WE WILL notify Frank Vlack Company, Inc.,
and the employer members of Muskingum
Valley Building Trades Employers Association
who use Respondent Union's hiring hall, and
mail a copy of such notice to Roy W. Thomas,
that Roy W. Thomas will have full use of the
hiring facilities without discrimination in
connection with referrals for employment.
LOCAL UNION 136,
MUSKINGUM VALLEY
DISTRICT COUNCIL OF
THE UNITED
BROTHERHOOD OF
CARPENTERS AND
JOINERS OF AMERICA,
AFL-CIO, and its agent
Harold Jackson
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 621-4465.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR E . REYMAN, Trial Examiner : On July 6, 1966,
Roy W. Thomas, an individual , filed a charge against
Local Union 136, Muskingum Valley District Council of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO , hereinafter sometimes called Local
136 or the Union , and its agent , Harold Jackson. On the
basis of the charge, the General Counsel of the National
Labor Relations Board , on behalf of the Board, by the
Regional Director for Region 8, on August 15, 1966 , issued
a complaint and notice of hearing directed to the Union
and its agent Jackson , herein sometimes called the
Respondents . The complaint was issued pursuant to
Section 10(b) of the National Labor Relations Act, as
amended (61 Stat . 136, 73 Stat . 519, 29 U.S.C. Sec. 151, et
seq.), herein called the Act, and sets forth certain acts and
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct on the part of Local Union 136 and Jackson
alleged to be unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the
Act. The Respondents filed timely answer to the
complaint, effectively denying the alleged violations and
setting up certain affirmative defenses, hereinafter
discussed.
Pursuant to notice, this case came ^,ii to be heard before
me in Newark, Ohio, on October 18, 1966, and was closed
on the following day. At the hearing, the General Counsel
and the Respondents were represented by counsel, and
the Charging Party appeared in proper person. Each party
was afforded full opportunity to present evidence material
and relevant to the issues, to call, examine and cross-
examine witnesses, to present oral argument after the
taking of testimony, to submit proposed findings of fact
and conclusions of law, and to submit briefs. A
memorandum of law and fact was submitted on behalf of
the General Counsel, and a brief was submitted on behalf
of the Respondents. Each has been carefully considered.
On the final day for submission of briefs or other
appropriate papers, the General Counsel by counsel filed a
motion to reopen the hearing on certain stated grounds,
this motion, by order of December 2, 1966, being denied by
me, subject to my review on a further examination of the
full record.
From my observation of the witnesses and upon the
whole record of the case, the following findings of fact and
conclusions of law are now made:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED HEREIN
Muskingum Valley Building Trades Employers
Association, with some of its members is party to a certain
written agreement entitled "1964-1965-1966 Carpenter's
Contract," with Muskingum Valley District Council of the
United Brotherhood of Carpenters and Joiners of America,
comprised of some five local carpenters unions, including
Local Union 136, this agreement intended on its face to
provide, inter alia, for the negotiation and administration
of collective-bargaining agreements made for and on
behalf of the respective parties to govern their relationship
as employers-employees for the years 1964, 1965, and
1966. There is some question here, not too important,
whether Local 136 was successful in an attempt to
withdraw from membership of the District Council and its
obligations under the contract early in the year 1966.
Among the employer group (Association), were Frank
Vlack Company, Inc., John J. O'Neil Company, Walter
Chaney Company, and Camilin Company, each engaged in
the construction industry in the Newark, Ohio, area.
Frank Vlack Company, Inc., is an Ohio corporation with
its principal offices situated in the city of Columbus, Ohio,
and is engaged in the business of commercial and
industrial construction, deriving annually therefrom
revenues in excess of $50,000 for services rendered and
material furnished to enterprises engaged in interstate
commerce within the meaning of the Act. The Association
and its members, including Frank Vlack Company, Inc.,
are now and have been at all times material herein
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED HEREIN
Respondent Local Union 136 is, and has been at all
times material herein , a labor organization within the
meaning of Section 2(5) of the Act. During such times, the
Respondent, Harold Jackson, has occupied the position of
business representative of said Local Union 136 and has
been and is now, an agent of said Local Union 136, acting
on its behalf and is its agent within the meaning of Section
2(13) of the Act.
The principal office of the Respondent Local Union 136
is now , and has been at all times material herein, situated
in the city of Newark, Ohio, where it maintains in effect
and is continuing to maintain in effect a hiring hall
arrangement as a result of the collective-bargaining
agreement entered into by it on or about May 1, 1964, to
terminate on or about May 1, 1967, with the Muskingum
Valley Building Trades Employers Association, an
organization which exists for the purpose of negotiating
and administering collective-bargaining agreements made
for and on behalf of its member employers with
Respondent Local Union 136 and other labor
organizations . By reason of the said collective- bargaining
agreement , the members of the Association constituted
themselves as a single employer for bargaining and
jurisdictional purposes. In the course and conduct of their
business operations, the members of the Association
annually derive revenues in excess of $50,000 for services
rendered and materials furnished to enterprises within the
State of Ohio which enterprises themselves are engaged in
interstate commerce within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues as Drawn by the Pleadings
The complaint alleges, and the answer denies, that since
on or about May 1966, Frank Vlack Company, Inc., and
Respondent Local Union 136 have maintained and
followed a hiring arrangement or practice which comports
to and is identical with the exclusive hiring hall
arrangements as set forth in the contract between
Muskingum Valley Building Trades Employers
Association and the Muskingum District Council of the
United Brotherhood of Carpenters and Joiners of America,
mentioned above; that pursuant to the contract (collective-
bargaining agreement) under the hiring practice between
the parties, Local Union 136 and the Respondent Jackson
have maintained in effect and are continuing to maintain
in effect an exclusive hiring hall arrangement by which
Respondents refer individuals to employment by means of
a referral list; and that Thomas, the Charging Party,
registered on the referral list on or about January 31, 1966,
and reregistered on or about April 28, 1966, and as a result
of such registration was on the referral list of Local Union
136 at all times from on or about January 31, 1966, and
continuing thereafter and was available for work. The
complaint further alleges, and the answer denies, that:
Respondent Jackson threatened to expel the Charging
Party for membership in Local Union 136 because Thomas
had stated his intention to file unfair labor practice
charges with the National Labor Relations Board against
Jackson and Local Union 136; since on or about
January 31, 1966, and continuing thereafter, Local Union
136 and Jackson have disregarded and/or refused to
recognize Thomas' registration and position on the referral
list and have refused to refer him to employment to the
member employers of the Association and Frank Vlack
Company, Inc.; as a result of the conduct of the
Respondents, the Charging Party was unable to secure
employment with any of the member employers of the
LOCAL UNION 136, CARPENTERS
Association and/or Frank Vlack Company, Inc., from on or
about January 31, 1966, and continuing thereafter; and the
Respondents engaged in such conduct because (A)
Thomas was a member of a reform of dissident group
within Local Union 136, and/or (B) that Thomas did seek
or favor the seeking of reform within Local 136, and/or (C)
Thomas stated his intention to seek redress of his
grievances against the Respondents with the National
Labor Relations Board.
The complaint alleges further, and the answer denies,
that the collective-bargaining agreement or contract
between the "Association and Respondent Local Union
136" contains, inter alga, provisions requiring as a
condition of employment that newly hired employees of
employer members of the Association become and remain
members in good standing in Local Union 136 on the
seventh day following the commencement of their
employment, which contractual requirements pertaining
to conditions of hire and tenure of employment do not
comply with the requirements of Section 8(a)(3) as
modified by Section 8(f) of the Act; that at all times
material herein, more particularly beginning with 6
months prior to the service of the charge herein and
continuing thereafter, Respondents Jackson and Local
Union 136 have maintained and otherwise given effect to
an arrangement, understanding, and practice requiring
membership in and/or application for membership in
Local Union 136 as a condition precedent to registration by
nonmembers on the referral list and at all times material
herein and more particularly beginning with 6 months
prior to the service of the charge herein and continuing
thereafter, Respondents Jackson and Local Union 136
have maintained and given effect to an arrangement,
understanding, or practice requiring nonmember
registrants on the referral list to pay to Respondent Local
Union 136 all, or at least a portion thereof, of the regular
initiation fee of Respondent Local Union 136 as a condition
precedent to referral to work after registration; that during
such time and more particularly beginning within 6
months prior to the service of the charge herein the
Respondent Local Union 136, Respondent Jackson, and
the employer-members of the Association, Frank Vlack
Company, Inc., and other employers operating and
conducting business within the jurisdiction of Local Union
136, have entered into, maintained, and/or otherwise given
effect to an unlawful arrangement, understanding, or
practice requiring membership in good standing in and/or
clearance by Respondent Local Union 136 and/or
Respondent Jackson as a condition precedent to referral to
and/or employment by employer-members of the
Association, Frank Vlack Company, Inc., and/or other
employers operating and conducting business within the
geographic jurisdiction of Respondent Local Union 136.
The complaint alleges, and the answer admits, that the
Charging Party, Thomas, is now and has been at all times
material herein a member of Respondent Local Union 136.
The answer avers that at sometimes material herein the
Charging Party was an employer, a contractor in the
construction industry, and was accordingly prohibited by
law from activities in the internal affairs of Respondent
Local Union 136.
'G C Exh. 2
R The complaint also alleges at times material herein and more
particularly beginning with 6 months poor to the filing and service
of the charge and at all times thereafter , the Respondents failed to
post in places where notices to employees and applicants for
employment are customarily posted, all provisions relating to the
1045
As a first affirmative defense, the answer avers that Roy
W. Thomas, the Charging Party, at all times material
herein when it is alleged that Respondent discriminated
against him and interfered with him as set forth in the
complaint, was an employer within the meaning of the
Labor Management Relations Act, as amended, and was
otherwise a contractor engaged in his own business; that
by reason of his status as an employer within the meaning
of the Act, his alleged dissident activity in Respondent
Local Union 136 was itself unlawful, and by reason of his
status as a contractor and an employer, he would not have
been entitled to participate in internal union affairs and in
fact was on withdrawal status from Local Union 136 during
numerous times material herein and therefore the conduct
of the Respondents, if it were to have occurred, would not
constitute unfair labor practices as to Thomas. At the
hearing, the Respondents moved to amend their answer to
the complaint to deny the existence of the exclusive hiring
agreement as embodied in the Council's collective-
bargaining agreement. Specifically, the answer denies that
on the facts and on the basis of the complaint, certain
allegations contained within the complaint constitute a
cause of action.
B. The 1964-1965-1966 Carpenters' Contract
This contract, sometimes referred to as a collective-
bargaining agreement, was executed "by and between
Muskingum Valley Building Trades Employers
Association , as negotiating agent only, for each Employer
who hereafter signs this Contract or a true copy thereof,
hereinafter referred to as the `Employer' party of the first
part and the Muskingum Valley District Council of the
United Brotherhood of Carpenters and Joiners of America,
hereinafter referred to as the `Union,' party of the second
part." The contract on its face expressly states that it "is
negotiated by the ... Association as negotiating agent only
for Employers of Carpenters ... as defined herein." The
jurisdiction of the District Council is expressly stated to
"cover those counties and local unions as listed below:
Local Union 136, Newark, Licking County, Ohio; Local
Union 245, Cambridge, Guernsey and Noble Counties,
Ohio; Local Union 525, Coshocton, Coshocton and Holmes
Counties, Ohio; Local Union 716, Zanesville, Muskingum,
Morgan and Perry Counties, Ohio; and Local Union 2280,
Mt. Vernon, Knox County, Ohio."
Article 5 of this contract provides for a hiring hall
system, the provisions of this article 5 containing extensive
and conventional provisions for the hiring of individual
carpenters under a plan of referral "of applicants to
employment."' Among other things , it is provided that the
District Council shall establish and maintain an open and
nondiscriminatory employment list for the use of
individuals desiring employment, and that all individuals
desiring employment shall register at the local union office
by appearing personally and shall indicate name, address,
telephone number, social security number, qualifications,
and type of work desired. It further is provided within this
article that "the Employer reserves and shall have the
right to accept or reject any applicant referred by the
union or to discharge for cause any employee who proves
unsatisfactory."2
functioning of the hiring arrangement referrea to and as
contained in the contract, including the safeguards deemed
essential to the legality of an exclusive hiring arrangement As I
shall find, the General Counsel failed to carry the burden of proof
to sustain these allegations of the complaint, and their dismissal
will be recommended.
299-352 0-70-67
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Local Union 136 and the District Council
Local Union 136, the geographical jurisdiction of which
consists of Licking County, Ohio, mostly greater Newark,
has a membership of approximately 200, about 75 percent
of whom are general carpenters and the remaining 25
percent millwrights.
Respondent Harold Jackson , a millwright , was president
of Local 136 for several years, and due to the illness of
Business Representative Brown in 1963, he became acting
business representative in the summer of that year. Brown
died in the fall of 1963 and Jackson was elected to fill the
vacancy of business representative. Thereafter, Jackson
was reelected to office in 1964 and 1966 for successive 2-
year terms as business representative.
The referral system mentioned above was negotiated in
1964 between the Association and the Carpenters District
Council, Local Union 136 being one of five local union
affiliates of the Council. Jackson handled referrals under
the referral system for Local 136 within its jurisdiction.
In the year 1965 (prior to times material hereto), the
District Council was dissolved and thereafter each of the
five affiliated carpenters local unions administered the
collective -bargaining agreement insofar as it pertained to
the activities of each of the locals; particularly , so far as
the instant case is concerned, Local Union 136. It is the
contention of the Respondents here, and it seems to be
well founded, that the constituent locals of the defunct
Council adopted the Council 's agreement only to the
extent that they recognized or enforced its terms . As will
appear from testimony of various witnesses, discussed
below, contractors did not follow the referral rules strictly
nor did Local 136 enforce the referral rules strictly
according to the original contract. The Respondents urge
with force that the Council's agreement originated out of a
hodgepodge of other labor agreements for large cities and
thousands of carpenters and the referral system as written
proved unworkable in a small town like Newark.
Melvin Ree , a witness called by the General Counsel, is
vice president and general superintendent of Camihn
Company and is president of the Muskingum Valley
Building Trades Employers Association . In answer to a
question as to whether it is "true there is no more
Muskingum Valley District Council of United Brotherhood
of Carpenters and Joiners of America," he replied that he
really did not know if there is or not; that ". . . they sent us
a letter," in which "they" said they split up into five
separate units. Ree testified that the District Council by
letter requested the members of the Association "to sign a
new agreement with each Local separately , which we did
not do. We felt that the agreement we had with the District
Council would cover all of our problems in this area";
again , on cross-examination he testified that the
Association declined to execute any written agreement
with the various locals who made up the former District
Council , and that so far as the Newark area was
concerned , the referral system as administered by Local
Union 136 encompassed only Licking County and that the
Association informed the unions that from the time of the
dissolution of the Council to the expiration of the
agreement , and the unions were told that [sic] the Associa-
tion felt it still had a valid contract and would operate
under those terms.
D. The Testimony of Witnesses Regarding Referrals or
Nonreferrals of Thomas
Because the record herein clearly reflects that
contractors during times pertinent to the issues herein
called the office of Local Union 136 for referrals or hired
carpenters directly on the job, or rejected the names of
certain carpenters on the carpenters referral list, it
becomes convenient to mention the testimony of certain
witnesses which bear on the actual hiring practices
followed by employer-members of the Association.
Steve R. Salyers, superintendent for Walter Chaney
Construction Company, testified that he was in charge of
the hiring and firing of employees at a construction job
performed by Chaney referred to as the Denison
University Fraternity House which began about
September 1, 1965. He said that during the course of the
construction of the fraternity house he had occasion to call
Business Representative Jackson of Local 136 for
carpenters during the months of January, February, and
March 1966; that normally, when he called Jackson he
asked if he had men available, and if he did, to read the list
to him (Salyers) and then he would tell Jackson if there
were any men on the list he wanted on his job. Salyers did
not recall that Jackson had ever read the name of Thomas
to him, nor did he ever tell Jackson that he did not want or
would not accept Thomas if referred. He said he had
known Thomas for 10 or 15 years as a friend and hot in his
capacity as a carpenter and that he was unable to say
whether or not Thomas was working on another job on the
single occasion when he telephoned Jackson.
Camilin Company engaged in a construction project
referred to as the Midland Theatre job in April or May
1966. Melvin Ree, as general superintendent of Camilin,
on May 3 or 4, 1966, informed Business Representative
Jackson over the telephone of the nature of the work being
done on that project and informed him that he needed at
least one man capable of doing certain described work.
Ree testified that Jackson read a list of names of available
men, including that of Thomas. Ree decided that none of
the men whose names were read to him had the necessary
qualifications for the job he had in mind. He testified that
Thomas had worked under him for Camihn on about 10
different jobs between July 28, 1961, and May 23, 1963,
and based on his knowledge of Thomas', previous work,
Ree did not think he was qualified for the Midland Theatre
job, which called for a finish cabinet type carpenter. Ree
testified that the work he wanted done required a man
qualified for applying formica paneling, a special type of
work, and the performance of a series of concentric forms,
each one a different radius, each one a different height,
and each one tapering on a consistent radius from the
center to the edge, that type of work requiring a cabinet or
millwork shop type of carpenter. Asked to describe the job
of carpenter in respect to skills, "from the best on down,"
Ree testified that in terms of workmanship a millman, who
builds cabinets and applies veneer and uses power
machinery, such as joiners, would be the most skilled in
the trade; then a finish carpenter who hangs doors and
trims doors, installs bases, and various moldings, would be
the next skill classification; then a form carpenter who
secures wood forms or metal forms for the purpose of
containing concrete, and another classification of
carpenter which probably "encompasses all of these"-a
man able to read blueprints and lay out work and lead all
the other carpenters would be on the top of the
classification list as lead carpenter . In addition
apprentices and rough carpenters are employed.
One of the reasons if not the reason that Ree rejected
Thomas for the Midland Theatre job was because Thomas
had not been able to satisfactorily perform work involving
LOCAL UNION 136, CARPENTERS
installation of a machine foundation and requiring a
concrete form to be built for the forming of a concrete base
and installation of anchor bolts according to exact
measurements. Thomas' unsatisfactory performance on
this job put the Company to the expense of other hire to
correct the job improperly performed by Thomas.
Ree further testified that a carpenter, one Willard
Clark, not referred to him by Jackson, applied for work at
the jobsite, Ree communicated with Jackson concerning
the qualifications of Clark, and Clark was put to work on
or about May 4, 1966.
John Adams testified that he was job superintendent for
the Frank Vlack Company on certain construction work
performed for the Tectum Company in Newark, Ohio,
during the year 1966. At the time of the commencement of
that job, he said that Business Representative Jackson
called at the construction site-"brought me a contract
and several self-addressed envelopes, all would go to the
office to be signed"-and that at that time he, Adams, told
Jackson that when he needed carpenters he would call
Jackson, and that later around the middle of May he called
Jackson and told him he was going to need two men, to
send one immediately and another the following week. In
this telephone conversation Jackson said that he would
send a man down and subsequently a carpenter, Joe
Adams, was referred and was put to work. Adams said that
the following month he called Jackson for another man and
Jackson referred a carpenter, Roger Smith, who was put to
work. Homer Pierce was referred to this job after being
requested. Upon further questioning, Adams said the
name of Thomas was never mentioned, that he had never
met him before the day he testified; he did not know that
Thomas had ever worked for the Frank Vlack Company;
Thomas has never worked on any job on which Adams was
superintendent; or he had ever told Jackson that he would
not accept Thomas. He denied ever having heard of
Thomas until Mr. Szabo, trial attorney in this case, called
him and "asked me about Mr. Thomas, that I had refused
him, or something, how was it, on the job."
Stacy Jonston, superintendent for John J. O'Neil
Construction Corporation, and supervisor on a project
called the City Hall job in Newark, where construction
started on January 17, 1966, testified that he had
communicated with Business Representative Jackson
three or four times, the first time being approximately
during the early part of March, then probably in May or
June, and then in August. According to his best
recollection he hired four or five carpenters through the
Union and hired others who applied for work at the jobsite.
Jonston was in communication with Jackson several times,
one or more times at Jackson's office and other times by
telephone, and according to his best recollection, after the
first hirings in March of four or five carpenters, he
employed two or three in May or June and three or foul in
August. He said that Jackson furnished him with the list of
men available for work-"I would run down through it and
try to pick men that had worked for me previous to that
time. . . . at that time there was some men available, ones
that might have known me, or worked for some reliable
contractor." He did not recall that the name of Roy
Thomas had appeared on any list or that Thomas' name
ever was mentioned to him in any conversation with
Jackson concerning the employment of carpenters. He
said he could not have said anything about Thomas in his
March conversation with Jackson simply because he did
not know Thomas, the first time he met him being at a
place called the Stone Grill in June and that:
1047
He asked me, at that time, I don't know what he
was talking about. I do know, I can't say the man was
drunk, I do know he was drinking I did not carry on a
conversation with anybody at that time, but he did say
something about why he wasn't working on the City
Hall.
To the best of my knowledge, Mr. Thomas had
never worked for me previously, that I know of.
It clearly appears from his testimony on direct
examination that his conversations with Jackson were
concerned primarily with a type of carpenter needed by
him on the City Hall job, that the name Thomas meant
nothing to him, and never came up in any conversation
between him and Jackson. He iterated on cross-
examination that in his dealings with Jackson for the
selection of carpenters for the City Hall job, lie called
Jackson, asked for a list of available men, made a choice
from the list furnished to him, attempting to pick from the
list a person he knew or had worked for him before and
whose qualifications were known to him, and in doing so
passed over a number of names appearing on the list
furnished to him. He was emphatic when he said that he
did not hire all men through the Union but did hire some
men who applied at the job, "men that know me and I
know them." Fred Powell, a carpenter, testified that after
he became a member of the Union in good standing, he
was referred to the Midland Theatre job by Jackson where
he performed general carpentry work for a period of 5
days. He said that he did not know that Ree had rejected
Thomas on the Midland Theatre job, that although he
would rather have gone out on millwright work he did not
object to the carpentry job because he was glad to get
work. Powell said that he became a member of Local 136
on or about March 11, 1966; that before he became a
member he had a conversation with Jackson sometime in
February at the office of the Union at which time he asked
Jackson if he needed millwrights. He said Jackson replied
that he had, but that the job was the one at Owens-Corning
but that the quota of men they needed had been filled.
There was further discussion, Jackson asking if Powell
was a millwright and whether he had tools, each question
being answered in the affirmative. Jackson told him that
the union dues and initiation fee would amount to $110 and
3 months' advance dues. In the second conversation with
Jackson, Powell related that Jackson told him that he was
not able to refer him as a millwright on a so-called white
ticket. He said the first job he worked out of the hall was
putting down hardwood on a gymnasium schoolhouse in
Utica, being referred to the job by Jackson: at the time he
did not know that there was such a thing as a referral list;
and he then was employed in Delaware, Ohio, to work 6
days as a millwright and when he came back somebody
asked him if he had signed the book. It was then, he said,
that he asked Jackson about the book and signed it, this
being in May or June 1966. He said that when he had
occasion to look at the book in the latter part of April or
early May after being at Utica 9 days, at Delaware for 6
days with a 3-week interval between the two jobs, when lie
examined the book, lie saw the name of Thomas on the
book and the name was not lined out. He worked on the
Midland Theatre job for 5 days, being referred there by
Jackson for carpentry work.
Donald Jenkins, business agent for Carpenters Local
716, Zanesville, Ohio, testified to the referral of carpenters
by Local Union 136 of Newark to a project having to do
with the Ohio University, E. Mace & Sons being the
contractors on that job. It appears from the testimony of
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jenkins that the carpenter foreman on that construction
job, Billin, informed him by telephone that three
carpenters from Newark, one of whom was Roy Thomas,
were there on the job and were not needed and therefore
not hired. He said that within a period of 2 or 3 days
carpenters were again engaged on the University project.3
E. The Maintenance of the Job Referral Register and
Referral Procedures
The comprehensive hiring hall system provided for in
the 1964-1965-1966 carpenters contract with the
Association has been referred to above, and, as noted, was
considered unworkable in respect to all of its provisions,
with certain other of its provisions adhered to by both
Local Union 136 and the employers of some of its
members.
In the instant case, most of the controversy revolves
around the maintenance of a referral register at the office
of Local Union 136, maintained by Jackson in his capacity
as business representative. That part of the book, called
the referral register of Local Union 136, is contained in the
record as General Counsel's Exhibit 5 and purports to
show the dates, beginning December 27, 1965, to and
including October 14, 1966, the names of men who were
first placed on the register and then, as to most of them,
when a name was struck from the register to show that a
man had obtained work or no longer was available for
referral. The exhibit shows the names of some 214 men
(some of which are duplicated from time to time) who were
on the referral register and also shows 27 of those names
not "lined out," meaning that they had not been referred
to jobs. In actual practice, carpenters who wished to be
referred to a job might visit the Union's office and sign the
register, or call the business representative by telephone
to inform him that they were available and wanted work, in
which case his name would be recorded in the register.
Names were recorded in the order carpenters signed or
called. At times, the date the signature was affixed or
the call was registered on the column appears in the
left column. Names lined out show or purport to show
when a carpenter got a job, when his name was stricken
from the list, or lined out, by the drawing of a line through
it. The burden is upon the individual carpenter to
reregister when he wishes a referral. An examination of
the register and the testimony of individuals show that at
times the carpenter was noted as being assigned to a
particular job, or otherwise noted a man's availability.
The general part and existing practice of the local union
is for its business agent to strike a man's name from the
work referral list when the man has been on a job for 3 or
more days.
Although referral to a job under the referral procedure
resulted in the worker's name being lined out, this,
according to the uncontradicted testimony of Jackson, was
only one of several reasons names on the register might be
struck. It might possibly appear from inspection of the
referral pages that the name of a carpenter on the list was
being passed over because the register at times shows
names stricken out below other names not so stricken.
Jackson enumerated the reasons why a man's name might
be lined out while others above it on the list were not.
These reasons are stated to be the instances where a man
gets his own job in the trade, whatever and wherever it
may be, and stays on the job for at least 3 days-although
his name is stricken, this is not a referral; where an
attempt was made to reach a man for referral to a Job and
the attempt was unsuccessful, resulting in the referral
going to the next man on the list who was reached-this
being a proper referral; a man could be requested by name
by a contractor, whereupon his name would be lined out,
such an instance being a proper referral out of turn;
occasions where the name of a man might be lined out
because he was in a different classification such as
carpenter for carpentry work or a millwright for millwright
work-this being considered a proper referral based upon
the qualifications of the man to do the particular job; a
man may personally ask to have his name struck for
personal reasons because he does not wish for work at a
particular time-this is not a referral; at times a man
whose name is highest on the list or above others on the
list may be refused by the contractor and a lower man
accepted-in such case the refusal of the contractor is
proper and the referral of the next available man is in
accordance with the referral procedure; occasions when
the business agent knows that a man is physically
incapacitated and unable to work the business agent may
line out his name for this purpose, that is, not being
available for work-this is not considered to be a referral;
the name of a man may be stricken when he goes to work
within the jurisdiction of another local union of the
Carpenters, such cases not being a referral by Local Union
136, although it might be considered to be such; however,
since such referral is out of the jurisdiction of the local it
cannot be said to be based on exclusive referral
procedures-this would not be a referral; the name of a
carpenter might be stricken when he clears from the local
union and transfers his membership into another local-in
such case this is not a referral; it is not considered a
referral when a man's name is stricken upon his death;
and finally, a man may be referred for a job as a
superintendent or foreman, the job being that of a
supervisor within the meaning of the Act, or the business
agent may properly suggest someone with special
qualifications to become a supervisor, and such a referral
to a supervisory position is considered by the local union
not to be an action covered by the Act and not the subject
3 On the question of the dissolution of the District Council,
Jenkins testified that he had been a business agent for some 10-
1/2 years, the terminal report involving the dissolution of the
District Council was filed with the Bureau of Labor Management
on or about November 3, 1965, he had formerly been a president
of the District Council; and the referral procedures contained
within the contract between the Muskingum Valley District
Council and the Muskingum Building Trades Employers
Association was derived from various sources, including an
information bulletin from the Carpenters International
headquarters, from the Ohio Valley Carpenters District Council,
paragraphs from the local union collective agreement in Marietta,
Ohio, provisions of each being incorporated into the Muskingum
Valley agreement He said that the Ohio Valley District Council
had a membership of nearly 4,000, the Muskingum District
Council had a membership of about 600 in six local unions when
organized, and at the present time the five local unions named as
party of the second part in the 1964-1965-1966 Muskingum
Distnct Council contract each operates independently with
business agents at Newark, Cambridge, Coshocton, Zanesville,
and Mount Vernon. Jenkins testified that the Muskingum District
Council was dissolved because it was found that it was not a
practical or feasible method of operation of union-referral
procedures and that it was more practical to work out of the
separate offices
LOCAL UNION 136, CARPENTERS
of a charge of discrimination against a man whose name
might appear higher on the list.4
With regard to telephone messages-that is, those times
when carpenters did not personally call at the office and
sign the referral list-Jackson noted the message
conveyed to him as to a man's availability on a yellow
sheet of paper or pad, and subsequently at a convenient
time transferred that name from the yellow sheet to the
register. The Respondent also asserts another reason why
the name of a man might remain on the register when
others below him had their names lined out, this being a
case of oversight;-the business representative might
know that the top man was working, but sometimes
through inadvertence did not remove his name from the
list when technically it should have been. Two such
instances are cited in the record; the first affected
Thomas, who was doing work for Thomas R. Brunner, as a
contractor, from about the middle of May 1966, for a
period of about 6 weeks, and the other, as testified to by
Arthur Lucas, on or about October 7, 1966, he spoke to
Jackson about there being certain names before his on the
register which should have been lined out and that when
Jackson discovered that some of the 14 men he thought
were ahead of Lucas were working, he lined out the names
and told Lucas that he had been too busy to bring the book
up to date. A third case, more error on the part of the
carpenter than on the part of Jackson, occurred in
February 1966 when Ernest D. Bucy claimed that his name
had been improperly lined out; Bucy conceded that
Jackson said he had stricken Bucy's name because he
thought Bucy was working although, according to Jackson,
the entry was correct and the lining out of Bucy's name
was proper because Bucy was actually working at the time
when Jackson lined out his name.5
There is no dispute concerning the fact that members of
the Union had free access to the referral register and were
in a position at any time to place their name thereon if they
desired work or wanted to question their place as reflected
by the register when they had reason to believe that they
were entitled to referral over men whose names appeared
above them on the list. Jackson, as a Respondent herein,
was questioned at length, and there is nothing inconsistent
in his testimony concerning the maintenance of the
register and the referral of men to jobs therefrom. The real
question here, as raised by Thomas, concerns a difference
of opinion among majority and minority members of Local
Union 136 as to policy as applied to the use of the register.
That this difference of opinion was a matter of discussion
and debate both informally and within the formal meetings
of the Union is clearly apparent from the record
During the times the complaint alleges discrimination
against Thomas, January 1, 1966, is shown as the date on
which Thomas first signed the referral register and the
' Although Business Representative Jackson is the one who
maintains the register , there was a long time during the years 1965
and 1966 when his wife was seriously ill. She passed away on
April 4, 1966, and during the time immediately preceding her
death Jackson was absent from the office for some periods of
time He also was absent from the office during the month of July
1966, when he attended a Shriner's Convention in Hawaii. During
these absences, Carl Scherer, financial secretary, kept the
register
5 Jackson testified that Thomas and Bucy each had stated
opposition to the procedure for sinking from the referral register
1049
date of April 28, 1966, is shown as the one when his name
next appeared thereon. On the latter date, Thomas called
at the union office and paid several months back dues at
the time he signed the register.
Within a few days after January 31, Thomas was
referred to a job at the Kresge store in Newark which he
worked on for a period covering some 3 days for a total of
17 hours. According to the testimony of Jackson, it was
contemplated that the work takes more than 3 days so that
after the expiration of the 3-day period Jackson drew a line
through Thomas' name on the register. It appears that
Kresge terminated Thomas' job because the store
construction manager was not satisfied with his work. This
is uncontradicted. According to Jackson, and not denied
by Thomas, Jackson called at Kresge sometime later to
assist Thomas in getting pay due Thomas, and at that time
was shown the nature of the poor workmanship performed
by Thomas and given the explanation as to why the
construction manager no longer wanted Thomas on the
job.
The name of Thomas did not appear upon the register
from early February until April 28, 1966. This being the
fact, Jackson would not have been required, as a matter of
course, to refer him to any particular job during this period
of nearly 3 months when several contractors called upon
Jackson to furnish carpenters for construction projects.
As noted above, Ree called for union referrals for the
Midland Theater job on May 3 or 4, that Jackson
mentioned Thomas' name to Ree, and Ree told Jackson he
did not want Thomas. When Joe Adams was referred to
the Tectum job in May, it does not appear whether or not
Thomas was available for work on that job; the referral to
the University job went to a man who previously had
worked there and was requested by name. During May,
Thomas undertook as a contractor to do certain work for
Thomas Brunner where he worked 2 or 3 or more hours a
day, on and off, from May 20 over a pet iod of about 1-1/2
months. Thomas went to work for Buckey Bridge
Company, not under a union contract, on July 21, 1966,
and worked for Buckey thereafter until just before
October 18, 1966. From the period July 1 to 21, 1966,
Jackson was absent from the office, and there is no record
of referrals made during that period of time. In accordance
with practice, Jackson lined out Thomas' name sometime
after July 21, after Thomas had been and still was working
on his Buckey Job. Also, as shown above, Jackson and
Scherer referred Thomas to jobs in Zanesville, some 30
miles distant from Newark. Thomas refused one referral
for the reason he was expecting to start work on a roof job
he was contracting; Thomas accepted the second
Zanesville referral to the E. Mace Company job at Ohio
University but, as above noted, was not given employment
there, being told that there was no work for him.
In substance, then, the record shows that Thomas had
the name of a man who got his own job as an employee or as an
independent contractor, claiming that the Union had to refer the
man in order to strike his name The Respondent points out that
the position of the Union is that this would impose an unfair
burden on administration of the referral procedure, particularly
where so many men obtained their own jobs Respondent
contends that these differences in views raise no issue litigable
before the Board, that the Union has the right to operate under the
rule of removing from the out-of-work list men who are not out of
work.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no real complaint as to his nonreferrals to jobs based on a
violation of or ignoring of the usual and regular use and
maintenance of the job-referral register.6
F. Thomas as a Contractor
The Respondents in their answer to the complaint "aver
that at some times material herein the Charging Party was
an employer, a contractor in the construction industry, and
was accordingly prohibited by law from activities in the
internal affairs of Respondent Local Union 136." Section
43J of the constitution and laws of the United Brotherhood
of Carpenters and Joiners of America permits a member to
remain a contractor or enter into the business of
contracting under certain provisions therein stated and
also provides that a "contracting member shall not be
eligible as an officer, Business Representative, or delegate
of a Local Union or eligible to vote for officers, Business
Representative(s), and delegates and shall not be eligible
to vote on the wage question."
It appears that Thomas contracted with Thomas
Brunner on May 20, 1966, to do certain work in connection
with the construction of an addition to Brunner's house.
Brunner, an individual, is an employee of E. T. Rugg
Company, where he works as an Extello operator. He
testified that he receives a disability pension of $21 per
month arising, out of World War II. Brunner related that in
the spring of 1966 he entered into an arrangement with one
Charlie Russell, who first undertook to do the work
Brunner wanted done on his house for $600, whereupon
Brunner and his wife borrowed $600, after which Russell
told them he could not do the job but would try to get
somebody else to do it. One following evening Russell
brought Thomas to Brunner's house when, Brunner said,
Thomas looked the job over, found out what Brunner
wanted to have done, and agreed to take the job. The job
itself was an extension to be attached to a backroom of
Brunner's house some 8-feet wide and 23-feet long.
Thomas started work on the job during the first part of
May after Thomas said he would go ahead with the job but
would like to have $200 down before he started it, which
Brunner and his wife gave him. At that time Thomas said
he would like to have $200 when he got it in the footing.
Brunner said that thereafter Thomas got a man to dig the
footing, did some work himself including the smoothing of
the cement, and finally, after about a month and a half,
Thomas ceased work on the job. Brunner said that he
spent not more than 4 or 5 hours a day and sometimes
would come in for about 2 or a little more hours. Thomas
employed one or two men at different times to work on this
job. After Thomas had disappeared for a period of about 7
weeks, Brunner wrote him a letter asking him to please
come and finish the job or refund his money-that he
would get someone else to do the job. Brunner testified he
paid Thomas $600; Thomas testified that Brunner had
paid him $400. Brunner related:
They gave us [Mr. and Mrs. Brunner] a check at
the Franklin Federal in Columbus for $600, so I didn't
want to give him the full $600, because of the way he
started, he wanted his money.
She went to the bank and got all three money orders
made out on May 20th. He kept coming to us and
wanted another money order. I thought Red was
alright. We went ahead and gave it to him. He said he
had to have it.
Brunner testified, and I believe him, that three money
orders, each in the amount of $200, were given to Thomas.
Brunner testified that he had known "Red" Thomas ever
since he was a boy, and gave him the money orders
"because I thought Red was alright." Finally, Brunner
received a letter from Thomas dated Newark, Ohio,
October 9,1966, in which Thomas wrote:
Tom, my doctor says I can go to work by Wednesday
or Thursday, so I will be over to your house and start
your work one of those days. Red Thomas.
Brunner testified that he had received a previous letter
from Thomas dated August 9 in which Brunner said:
He [Thomas] said he went broke and had to get a job
with the local contractor. He said he really went
broke, he had to accept a job with the local contractor
in order to pay his bills and things he had bought;
besides, he would be in there either on Saturday or
Sunday, that the job had lasted longer than he
thought.
In answer to a question as to how much Brunner thought
Thomas owed him, Brunner replied:
Well, it's my estimate, myself and other people's
estimate people that I have talked to and some of
them know carpentry work quite well, they doubt very
much if he has any more than $300 in what he has got
up there right now. It's just a shell, not a thing done on
the inside. The floor is just layed temporarily. It isn't
even down permanently, and there is no weather
boarding on it. There is no trim. He was to put it in,
said he would put in three wall receptacles and run a
cable down for my pool table. He did run the gas line
to connect the heat stove.
Under date of June 27, 1966, the Respondent Union
received the following letter:
Carpenter Local #136
7-1/2 East Church Street
Newark, Ohio 43055
Gentlemen:
This is to inform you that Roy W. Thomas has
ceased contracting and wish's [sic] it known that he
is no longer a contracting member of Carpenters
Local#136 and as of this date expects to be treated as
all other members in good standing in Local# 136.
Yours very truly,
/s/ Roy W. Thomas
/s/ Per Darlene Lambert
Roy W. Thomas
Under examination by counsel for the General Counsel,
Thomas conceded that Jackson had never made a direct
statement to him that he would not be referred because he
6In connection with the question of whether Local Union 136
maintains and enforces an exclusive hiring hall, it clearly appears
that during the times pertinent hereto, Local Union 136, as well as
the other local unions composing the Council, has not enforced
the exclusive hiring hall. It has been held that it is permissible for
an employer to agree to hire only employees referred by the
Union, provided that the hiring hall is operated on a
nondiscriminatory basis Local 357, International Brotherhood of
Teamsters (Los Angeles-Seattle Motor Express) v. N L.R.B , 365
U S 667 Nothing in the record here indicates the enforcing of an
exclusive hiring hall agreement operated on a discriminatory
basis If this conclusion is correct , then the only issue present in
regard to hiring and referral is whether it can be found that
Thomas was harmed or discriminated against for employment as
an individual member of Local Union 136.
LOCAL UNION 136, CARPENTERS
was an independent contractor and said he did not know
exactly but his recollection was that he had spent 6 or 7
days on the Brunner job . On cross-examination he said
that he did not know precisely over what period of time the
6 or 7 days he spent on the Brunner job covered, but he
thought it was 2 or 3 weeks, that he was coming back from
time to time: "I imagine , about seven months . The job isn't
completed yet." Before this, Thomas testified that he did
not remember any exact date on which he started the
Brunner job ; he did not take $600 from Brunner but took
$400; and "Mr. Brunner asked me to finish the job. I
stated that I went broke , that is strictly a business matter;
it has nothing to do with this."
According to his statement given to a representative of
the Regional Office of the Board on July 19, 1966 , Thomas
stated "[a]bout two years ago , I signed a labor contract
with the district contractor as an employer -contractor"
and had signed a collective -bargaining agreement with
Local 136 as an employer -contractor . In answer to a
question as to whether or not he had testified that Jackson
had referred him to a job in Zanesville , and had told
Jackson that he did not want to leave the District locally
and had a job of your own that he was working on, Thomas
replied that he did not state that-"I stated a possible roof
job. I thought I had a job, I didn 't get it." In 1965 , he said
he had been a contractor on one or two small projects.
Therefore , the Respondents have sustained their
defense that at some times material herein Thomas did act
as an employer -contractor , and therefore under union
rules was not entitled to referrals to other jobs. This
concerns particularly the Brunner job, when Brunner was
treated so shabbily . More important , however , are the
facts in connection with the Brunner and Buckey Bridge
jobs, which disprove in part Thomas ' contention that he
was discriminated against in respect to referral to jobs.
G. Alleged Failure to Post Notices
The complaint alleges, inter alga , that the Respondents
failed to post in places where notices to employees and
applicants for employment are customarily posted all
provisions relating to the functioning of the hiring
arrangement hereinabove discussed , including the
safeguards deemed essential to the "legality of an
exclusive hiring arrangement."
At the hearing, upon the close of the General Counsel's
case-in -chief, counsel for the Respondent moved to
dismiss these allegations of the complaint (par. 15). This
motion was taken under advisement , but will be granted
herein.
The only testimony offered in support of this part of the
complaint is that of Fred Powell , who called at Jackson's
office at the union hall twice , each time for a visit of
approximately 45 minutes . The main subjects under
discussion were the requirement for membership in Local
Union 136 and the possibility of Powell being referred to a
job. He was questioned concerning , and testified to, what
he saw in Jackson 's office during these visits . He recalled
seeing a telephone set, a pad sitting in the middle of the
desk , a little filing box "up in the lefthand corner," and a
letter opener on Jackson ' s desk . In response to the
question as to what he saw on the walls of the office, he
replied there were numerous things, including a calendar
and a so-called equal -opportunity poster. In response to
another question "[a]re there other papers, safety
posters, different voting stickers , and there is a board
hanging there with different members of the Local
1051
telephone numbers, names on it , there are some
documents , printed documents , some things on the wall
that weren 't pictures of girls?" he replied that yes there
were pictures of girls, too, but other than those pictures he
did not know what they were just by glancing at them. The
Respondent contends that the nonposting of referral
positions would not have been unlawful , but in any event,
the General Counsel suffers a total failure of proof on this
point.
I find that the General Counsel has failed to carry the
burden of proof in support of these allegations of the
complaint.
H. The Alleged Discrimination Against Thomas
Thomas, a lifelong resident of Newark, Ohio, has been a
member of Local Union 136 for approximately 7 years. He
is a carpenter by trade and has worked as a carpenter for
"probably 10 years altogether." He testified that he had
been acquainted with Harold Jackson for approximately 15
years. He and Jackson have been and are political rivals
within the administration of Local Union 136, Thomas
having unsuccessfully opposed Jackson for the office of
business representative and having been defeated several
times. Jackson had been elected to office to serve two
successive terms of 2 years each in 1964 and again in 1966,
and previously elected to that office to fill the unexpired
term of his predecessor , Brown , after the latter 's decease
prior to the 1964 election.
As shown by the testimony of many of the witnesses who
appeared , Thomas is well known in the greater Newark
area. The fact is implicit in his own testimony . Jackson is
also comparatively well known in the Newark area, having
served 6 years as a justice of the peace and also having
been elected mayor of Hebron , Ohio, a community within
the greater Newark area.
The office of Local Union 136, sometimes called the
carpenter 's hall , is located in the same building as a
number of other offices of building trades unions. On the
same floor on which the union headquarters is located, and
about 45 to 50 feet away from there, is a clubroom or
lounge or bar used by individual carpenters and perhaps
members of the other trades unions, where they may relax
while not working or waiting for work. Prior to the year
1966 and during many occasions in that year, Thomas
spent considerable time at the clubroom . Some of these
occasions (and at least one significant one) happened
during the time Thomas claims he was being deprived of
referrals by Jackson.
The bylaws of Local Union 136 require regular meetings
to be held on the second and fourth Fridays of each month.
The record discloses that Thomas has opposed local union
programs from time to time at these meetings . It also is
shown that Thomas, among other matters. strongly
opposed the method and policy of Local Union 136
regarding the manner in which referrals to work
customarily were made.
Thomas was asked , as a witness called on behalf of the
General Counsel , whether he had occasion to visit the
building in which the officers of Local Union 136 were
situated in the year 1966 . He replied that he frequently
went to the building twice every day; he went to, the
business representative 's office usually to check to see
whether he was getting any work or to talk; he was there
every morning between 8 and 9 o'clock and in the evening
from about 3:30 to anywhere between 6 and 7 o'clock; and
after visiting the business representative 's office "we
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would go out to the clubroom , drink coffee, play cards"
and perform the same routine in the afternoon . At other
times, he said , he occasionally called at other places in
town including the Eagles and the Stone Grill . At anytime,
he said either he or his wife would be at home to answer
the telephone. He testified further that he engaged in
frequent conversations with Jackson at the hall.
In connection with the Kresge job he testified that on
(approximately ) the morning of January 28, 1966 , he called
at Jackson's office about 9:30 and that while he and Carl
Gray were sitting there talking about work the telephone
rang , that Jackson answered it and turned around and
informed Thomas and Gray that "they wanted a man at the
Kresge store, one of you guys want this job?" Thomas said
that Gray said he did not want the job whereupon he said
he would like to have it because he needed the work. He
said that Jackson "sent me over"; contrary to the
testimony of Jackson, he said that the latter did not
accompany him to the jobsite. In accord with the
testimony of Jackson, he said that he had some difficulty
in obtaining his pay for the work done on that job and that
Jackson rendered assistance in obtaining his pay. He said
that after the completion of the Kresge job he was not
"contacted by phone or personally by Mr. Jackson for any
referral." He said that he obtained employment with the
Buckey Construction Company, starting work there on
July 21, and continued to work there until the Friday
before the opening of the hearing of this case on
October 18, 1966. He said that from the time in April when
he discovered that his name had been lined out of the
register he received no referral from the hiring hall except
"[h]e tried to send me to Zanesville.... I refused the job
because it was out of my district. I didn't want to go. I also
told him [Jackson] I had a small job of my own."
From February to June 30, 1966, Thomas became aware
of several large construction jobs in progress in the
Newark area including one at Owens-Corning, a
warehouse being built by Service Products, the City Hall
job, the Tectum job, and the Dennison University project
in Granville, Ohio. On or about May 6 he related a
conversation he had with Jackson at the latter's office, the
reason for Thomas going to see Jackson being that,
according to Thomas, "he sent men around me. He lied to
another man, told him I had been sent out on a job." The
men he referred to included Fred Powell, Arthur Lucas ".. .
there was a bunch of men, but I couldn't keep track of the
list." He also mentioned the name of Louis Bucy and his
son, Ernest. After Thomas had asked Jackson why he had
not been sent out, Thomas said Jackson "started giving me
a line":
He wouldn't give me any reason whatsoever. Just
stated that , practically called me a liar. I was
drinking. I had a drink. I offered to, if he would get up,
I would knock him on his ass. He got up and called me
a liar. He refused to do that. I then went to the bar,
came back out, thought about it, came back and told
him if he wouldn't give me a job that I was going to the
N.L.R.B. and try to get work somehow.
* * * * *
He said if I did, I could lay my card on the table, I
'would not belong to the union.
Thomas said that he never had occasion to work for
John Adams, Stacy Jonston, or Steve Salyers, that he had
never met John Adams, that he knew Stacy Jonston by
sight, and had known Steve Salyers "for 12 to 14 years,
personally." He said that he was not aware of any
employer who notified either him or Jackson in 1966 that
they would not accept him if referred.
Thomas related happenings between himself and Ira
Walker Pimm, president of Local Union 136, at a meeting
of the Union approximately during the middle of August
1966. Pimm was then, and is now , president of the Local.
He related that:
During the meeting , the secretary or treasurer of
the Union, whatever his office, anyhow, he handled
the books, he made the statement that the books were
overdrawn 300-something dollars. He couldn't find
it, his wife couldn't find it, neither could find it.
I suggested that they get a C.P.A. to audit the books
and that would relieve him of any responsibility.
Before it was over, I was practically thrown out. I said
at the meeting that I thought it was a cut-and-dried
deal, that is when Pimm offered to come with me,
come out with me if I didn't get-practically offered
to come out and offer to whip me if I didn't shut up.
He said he was getting tired of my talking,
mouthing over, he wasn't going to put up with it, he
was going to come out and do something about it.
After the close of that meeting, he said, Pimm apologized
and shook his hand, said he had never lost his temper like
that, to which Thomas said he offered his apology, told
Pimm of the situation , "what was going on," and asked
him, as president of the Union, why they couldn't do
something about Jackson "not sending me back to work."
He said that Pimm told him that perhaps he could go to
work in Columbus, or some other local, that he (Pimm) was
not responsible for Jackson's actions and that there was
absolutely nothing he could do-he had enough worries
taking care of his own business . Pimm testified, with
respect to what occurred between him and Thomas at that
meeting, that he and Thomas both lost their heads, "had a
little temper tantrum":
There was a mixup in the books, and we had an
executive board meeting. We got the mixup
straightened out. There was a report given as to where
it was, it was simply a little mistake , and the officer
was catching a lot of criticism from the membership. I
really didn't think it was due them, because they
spent a lot of time they don't get paid for.
There were three or four of them [members who
criticized the officer] Red [Thomas] was one of
them, I think Mr. 0 B. Ritcher, as far as I know, he
was another one. Other names, I couldn't tell you.
Pimm related that Thomas "kept getting the floor"; that
he tried as much as he could to keep order "which did not
seem to do much good"; but he knew what had happened
and he asked Thomas to sit down and be quiet, which
Thomas refused to do-
... Then it seems to me as though he thought there
wasn't anybody that was going to make him sit down.
I jumped out of my chair.
* * * * *
I told him I would fine him.
* * * * *
Well, if I remember right, he told me there wasn't
anybody in there that was going to make him shut up,
that's when I left the chair, that's when he shut up.
LOCAL UNION 136 , CARPENTERS
Well, I realized as I left the chair, I did say, I
thought I was man enough to do it, then I realized I
was strictly out of order and sat down, I turned around
and went back.
He said that later he and Thomas met, he apologized for
losing his temper, and that at that time Thomas told him
that Jackson was treating him unfairly "and this and that
and other things," and that he told Thomas that as far as
he was concerned, "putting myself in his shoes, if I
couldn't get work in this town I would go to another town. I
have been all over the United States." Pimm denied that
he had told Thomas that he agreed with him that Jackson
was deliberately keeping him from getting work; to the
best of his recollection he said that he had told everybody
that he did not think a business agent could send a man
out all of the time; he did not think a business agent was
responsible for holding a job for a man; and each man in
his line of work was responsible for himself. On cross-
examination, on being pressed for an answer as to whether
Thomas had asked him for help in trying to resolve his
referral problem, he said that Thomas had asked him if he
wasn't Jackson's boss, to which he replied that he was
not-that he filled his office and Jackson filled his; he told
Thomas that if asked he would try to help Thomas resolve
his problem of referrals with Jackson; he would do it at any
time, "like I would do with any of the rest of the members,
I would call a meeting in which we would have our
executive board at that time; I think I told him, I would
help him as far as I could go."
Thomas attended union meetings fairly regularly and
recalled one during the year 1965 when the proposed
dissolution of the District Counsel was discussed. He took
the floor in the course of the meeting and opposed the
"splitting up" of the Council. He said that Jackson
"directly favored it." He recalled another meeting in 1965
concerning a proposal to amend the Local Union's bylaws
to provide that current dues must be paid before a member
could be sent out. He opposed the proposal as being in
direct violation of the constitution of the International.
Jackson favored the proposed amendment to the bylaws.
He testified that during the course of the 1964 campaign
for union business representative as one of Jackson's
opponents, he took the position, "I would do a better job of
the hiring hall system, I would perform and operate it like
it should be, I would also take care of the business of the
Local better." Thomas said that, not as a part of his
campaign, he filed a charge against Jackson with the
International and that a hearing on this charge was held by
an International representative, one Sauer, apparently on
a claim that Jackson was not performing his duties
properly as business representative. According to
Jackson, no copy of the charge was ever given to him, nor
has any disposition ever been made of the matter by the
International representative. Basically, Thomas said, the
complaint was that Jackson was discriminating against
him and would not send him out on a job.
r At the hearing , counsel for the General Counsel asked
Thomas how he knew that Sauer had come to be at this meeting,
to which Thomas replied "to the best of my ability, I have no
proof, but I believe brother Jackson sent for him " I granted a
motion to stoke this question and answer which, in the light of
subsequent testimony and on the full record, I believe to have
been an erroneous ruling I allowed testimony regarding the
actions of the International representative and his participation in
the internal disputes between members of Local Union 136 over
the objection of counsel for the Respondents The constitution
and laws of the International provide in part (section 6D and E)
1053
Another grievance held by Thomas against Jackson was
in connection with carpenters employed by the Buckey
Construction Company. Thomas testified to a meeting
held during the month of September 1966 at which he and
Jackson, the executive board of Local Union 136, and
three or four carpenters from Buckey were present. He
said that Jackson at that meeting "[c]laimed that Buckey
employers had not signed our contract and was not in
compliance with it, and that something was going to be
done, we were going to have to leave the job." Thomas told
Jackson that it looked to him like "it was strictly a slap at
me, since I obtained a job. I liked Buckey Brothers to work
for, I liked the people, and if I was [sic] jeopardizing this
job, I would quit." According to Thomas, 2 or 3 weeks later
there was another meeting at which he, Jackson, the
executive board, and Sauer, the International
representative, and carpenters from Buckey were present.
Thomas said that Jackson "stated his views on this," and
that he, Thomas, said as far as he was concerned he
worked for Buckey Brothers to which Sauer replied "If
that is your attitude, you might as well lay your book on the
table." In answer to a question as to what had happened to
cause Sauer to tell him t.iat he might as well lay his card
on the table, Thomas said that:
They suggested that they were going to have to
carry a picket against Buckey if we didn't
straightened it out. I claimed I would continue to work
for Buckey, its [sic] then around that point he tried to
get my book. I said I would prefer charges against the
Local.
I stated we had the National Labor Relations Board
charges. He said they had lawyers in Cincinnati that
were smarter than any attorney that the N.L.R.B. or
government might have.7
On cross-examination, Thomas was unable to explain
why it took from early February until April 28 for him to
discover that his name was off the register or referral list
even though, as he said, he was in the union office twice a
day almost every day during the times between February
and April when he was out of work. Then, too, there is the
inconsistency which appears in connection with his claim
that he was not being referred to work at a time when he
was actively pressing the matter with Jackson, with the
executive board, and openly in union meetings.
It seems to me that Thomas remembered only a part of
much of the discussion concerning the Buckey situation.
He said he did not know how many times officials of Local
Union 136 had discussed the Buckey matter but that he
did remember the night that Sauer was there. Regarding
that meeting, the following testimony appears in the
record:
Q. [By Mr. Doggett] And you don't know if the
Union officials of Local 136 discussed Buckey twice
or 100 times, do you?
A. I do not.
Q. And that night that Mr. Sauer was there about
The right is reserved to establish jurisdiction over any
Local or Auxiliary Unions, District, State or Provincial
Councils whose affairs are conducted in such a manner as to
be detrimental to the welfare of the members and to the best
interest of the International Body
The United Brotherhood shall enact and enforce laws for
its government and that of subordinate Locals and Auxiliary
Unions and District , State and Provincial Councils and
members thereof.
1054 DECISIONS OF NATIONAL
the Buckey question, you spoke up, didn't you?
A. I did.
Q. And up to then, Mr. Sauer hadn't said anything
to you, personally, directly; he asked questions,
stating what should be done, giving strictly his
opinions only, but he didn't say anything to you,
Thomas, about throwing your book on the table before
you spoke up, did he?
A. When I stated that I wouldn't quit Buckey
employers, this is when he told me to lay it on the
table.
Q. What exactly did Mr. Sauer say?
A. If that was your attitude, then you might as well
turn in your book, lay it on the table.
Q. Never said anything about fining you, did he?
A. He did not.
Q. Didn't say you would be referred to a job, did
he?
A. He did not.
Q. Isn't it a fact that in the past, at least the past
three or four years, there has never been a member
expelled from Local 136?
A. Not to my knowledge.
Q. Taking it back further, in your six years, you
don't know of anybody being expelled, do you?
A. Not to my knowledge.
Bearing on the question of whether or not the Union
maintained an exclusive hiring hall arrangement, illegal
under the Act, the testimony of Thomas on cross-
examination does not make it precisely clear what he was
complaining about in that respect. Thomas' attention was
called to an affadavit furnished to a field attorney of the
National Labor Relations Board on July 19, 1966, in which
he stated that in May or June 1966, Jackson allowed
several laborers to sign the register, one man named Ralph
Kirkpatrick, and another, one Ralph McPherson. Thomas
denied the fact that he objected to a practice of Jackson's
permitting persons who were not members of Local Union
136 to sign the register for work, he knew Thomas had
allowed the practice, and until his attention was called to
his affadavit, he remembered only the name of Joseph
Adams. In answer to a question as to whether it refreshed
his recollection after having his affadavit called to his
attention that he knew that Jackson did allow nonunion
members to sign the register, he replied that he did not
know that Jackson allowed them to sign the register, that
he knew he sat and worked-"[t]hat is what I had in
mind. He might not have wrote it that way. He wrote it. I
can't read Joe Szabo's [the field attorney] writing, too
well." He said that his statement to the effect that Jackson
allowed several laborers to sign the register was true and
also the statement that he had been told by other
carpenters that the nonunion members were referred by
Jackson for carpenter work. He testified that he had told
people that he did not think it was right to send a man that
did not belong to the Local around other men whose names
already appeared on the register. He also testified, "I
stated that I objected to them being sent out of their turn. I
don't care who signed the register. The man who signs it
first should go out that way." He said:
Q. [By Mr. Doggett] Well, its true, is it not, that,
Mr. Thomas, that Mr. Jackson did sign up on the
register persons that were not members of the
Carpenters Local and referred them out for work?
LABOR RELATIONS BOARD
A. After accepting money, I think he did.
Q. But you do know about the money acceptance,
you know they signed when they weren't members?
A. I know the whole works was hearsay.
Thomas conceded that Jackson never told him that he
was not going to be permitted to go to work "out of the
hall," or that Jackson had ever told him that he was not
entitled to a referral because he, Thomas, was supposed to
be a contractor. He said that he heard that Jackson had
made these remarks from other carpenters whose names
he could not remember.
John M. Dugan, a member of Local Union 136 for
approximately 30 years, related his experience as
presiding officer over a meeting of the Local on Friday,
October 13, 1966, during which, he said, "there was a good
bit of commotion on taking in the eleven candidates, there
was a good bit of commotion about taking them in. Some
wanted to take them in, some didn't. Some wanted to vote
on them individually and some of them collectively." He
testified that Thomas took the floor several times in
opposition to admitting the candidates to membership. As
one reason for his position, Thomas said that the
application had not been read three times. Further than
this, Dugan testified:
Other than technical ones [basic objections], there
were three of the employees that worked for the John
J. O'Neil Company who had torn up their cards, at
that time, and he objected to them being brought in,
and he objected to one fellow being brought in that
was a deaf mute, he didn't know how you could give
him instructions, and I don't know either. I'm a little
like Red on that.
* * * * *
Mr. Jackson got up and explained that you couldn't
refuse to take them in on account of the Taft-Hartley
law, you must take them in, according to the law.
*
Jackson told them you couldn't keep them from
working. If you don't take them in, they could work
without a card.
He testified that he had previously heard Jackson express
the same view and that some members took an opposite
position.
In regard to the incident of May 6, when Thomas
confronted Jackson in the latter's office, Dugan related:
Well, it was pretty rough. Red come in there and
wanted to know how come he hadn't been given a job
to go to work. He said he needed the money and he
was going to starve him if didn't get to go to work, and
he called Mr. Jackson about every kind of name he
could think of and told him if he got out of the chair he
would knock him on his ass.
* * * * *
He called him all the sons of a bitch you can think
of. It's a good thing I wasn't business agent, because I
wouldn't take that.
* * * *
He said he would knock him on his ass if he got out
of the chair, then went out to the beer room and came
back a second time and offered to do it again.
Dugan said he could not swear that Thomas had been
drinking at the time because he had not seen him drinking
LOCAL UNION 136, CARPENTERS
but because of "his mean attitude, from the attitude he
had, I figured he had been drinking."
Harold J. Millar, a member of the Local, testified that he
was in Jackson's office on May 6 after having first stepped
into the clubroom where he noticed Thomas at the bar. He
said he wondered what Thomas was doing there "because
there was no cards on the bar, he wasn't playing cards"
and in answer to a question as to whether Thomas was
drinking, replied, "He was in a good position to be
drinking." He said that while he was sitting in Jackson's
office, Thomas appeared and Jackson asked him, "[d]id
you mean what you said to me?" to which Thomas replied
"[i]f you had gotten off your chair when I was in here, I
would have knocked you on your tail." Upon being pressed
to state whether or not Thomas was drinking when he
observed him in the bar, Millar said "Well, actually seeing
him drinking, just from my own observation, he was at the
bar," and said that it was his (Thomas') loudness that
attracted his attention, but that "he wasn't extra noisy
when he came into Jackson's office, I wouldn't say."
Dugan testified that at the meeting referred to, Dugan
recalled Lucas had also made a statement about the Taft-
Hartley Act but did not recall whether or not it was Lucas
or Jackson who first made the statement.
Ernest D. Bucy testified that he had been a member of
Local Union 136 for about 25 years, he had signed the
referral register in December 1965, and during the month
of February 1966 he had occasion to check the register to
see whether his name was still on it He said that he found
that his name had been scratched off, whereupon he
questioned this in a meeting with officials of the Local and
a meeting was held. Bucy testified that "I called them in
there to find out why my name was scratched off, and I
wasn't getting any work out of Local 136, they were
sending everybody out ahead of me. I wanted to know why
I wasn't getting referred to any of the jobs. I was promised,
promises don't bring me bread and butter." This meeting,
held during the last part of April, was attended by
Business Representative Jackson, President Pimm, Vice
President Frank Wessinger, and two other persons, one of
whom was a trustee. Thomas was present at that meeting,
but apparently his grievance in connection to the referral
was not brought up. Bucy testified:
Brother Jackson said he scratched my name off
because he thought I was off to work, he thought I was
at work, he scratched my name off. That was before
then, that is the reason I had the committee to find out
why my name was scratched off the book, and I
hadn't went out to work. The yellow pages will show
where 'my name was scratched off, and brother
Jackson wrote my name on there, and there was 27 or
28 men in the hall the night I took the paper and asked
Brother Jackson to come up and bring the book up
that I signed. I wanted to know why my name was
scratched when I hadn't gone out to work.
9 In 1964 Bucy had pressed charges against Jackson on the
ground that the latter was "sending too many men ahead of me on
the hinng hall list "
B Counsel for the General Counsel recalled Bucy as a rebuttal
witness and vouched him as such by asking him first if he had
been employed by the Belmont Bridge Company in December
1965, and whether and approximately on or about the 11th of
December 1965, he had been laid off by Belmont Bridge
Company? Such matter had not been touched upon Objections to
these preliminary questions were sustained as not being the basis
for proper rebuttal testimony , the proposed testimony of the
1055
In the absence of this witness, counsel for the General
Counsel made an offer of proof:
If allowed to testify, Mr. Bucy would state that
during the course of this meeting, the president of the
Local and/or other trustees therein in attendance
questioned him extensively and closely concerning
his connection with Mr. Thomas in contacting and
preferring complaint to Congressman Ashbrook about
the operations of the hiring hall.
In the course of the night, the trustees asked Mr.
Bucy if he would drop his connections with that
movement if they would refer him to work
immediately and that thereafter he was referred out,
early in May, and has worked regularly since.
Upon being recalled to the witness stand, and in answer to
a leading question as to whether anybody had asked him
(Bucy) any questions at this meeting regarding his being in
contact with Congressman Ashbrook, Bucy testified that
the meeting was held on a Wednesday night, that Jackson
accused him of writing-
Brother Ashbrook a letter and called him over the
telephone. That was discussed up there that night, so
they said it won't do me any good to go over and talk
to him, which I had not written, nor I had not talked to
John Ashbrook.
But then, Saturday, I did talk to Ashbrook.
Describing what was said at a meeting held on the
following Saturday night, Bucy said:
That was discussed up that night in the meeting.
They wanted me to postpone the meeting with
Ashbrook. Then, on Saturday, I was asked three
different times if I did, or if I had talked to Ashbrook
on the phone or called him, and my answer was no, so
then Mr. Jackson said, well, he guessed it was Red
Thomas that had called and made the arrangement
for having the meeting this Saturday. They wanted
Brother Jackson to send me out to work on Monday
morning. He had four places to send men to on
Monday morning. He wouldn't promise he would send
me, not unless I would withdraw my appointment with
Ashbrook.
He said he wouldn't send me out until the order came
in from over Route 40 over here. He had a job he
wanted to send me out. He wouldn't place me in any
other place until that man called for help over there. I
had been promised to go to Owens and the City Hall
job, that's what my meeting was for that night.
Bucy said that 2 or 3 weeks after these discussions he was
sent out to work and had worked every day except on
October 18, on which day it rained."
According to Bucy, Jackson, at a time when there was
an opening for four men on the Monday morning following
the Saturday meeting, informed Bucy that he would not
send him out "until the bridge job came up."9
witness having been vouched by the questions asked as not being
proper rebuttal; whereupon counsel stated that he was going to
the credibility of Jackson Jackson having been examined at
length on other matters as a witness called by counsel for the
General Counsel under rule 43(b) of the Rules of Civil Procedure,
and on cross - examination , and on examination by counsel for the
Respondent and further cross-examination by counsel for the
General Counsel, I excluded further questioning going toward
Jackson's credibility, the matters all testified to having been
exhausted, and I at this time having had more than adequate
opportunity to judge the credibility of Jackson
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The explanation as to why Thomas' name appeared on
and off the register essentially is simple. Jackson testified
that after his name was struck from the list after 3 days on
the Kresge job, Thomas came in to his office, paid several
months' dues, and said "now I have got my dues paid, I
want to sign the register." This date he definitely set from
his records as being April 28, 1966. Jackson testified that
insofar as he knew Thomas had worked for Buckey since
his name was scratched out, explaining that the reason for
Thomas' name appearing on page 3 and again on page 4 of
the register was that in order to simplify the job for
Scherer, before Jackson took his vacation, he posted the
names on the page under millwright and carpenter on page
4 so that Scherer would not have to thumb through the
whole book to find out who was available when he received
a call. In other words, that the transposition of names was
for the benefit of Scherer and for his convenience in the
use of the register. Jackson testified that he did know that
Thomas was doing work for Brunner sometime in May or
June, but that he did not strike Thomas' name from the
register through mistake or laxity on his part. He testified,
too, that he learned that Thomas had left the Brunner job
when Brunner called to see him to know whether it was
possible for the Local to assist him in anyway in getting his
house or room completed. In regard to Bucy, Thomas
testified:
Mr. Bucy and his son went to Columbus and went
to work for a contractor on a bridge. In December he
came into the office and said, "They need five men on
this bridge over there." I said, "Are you working in
Columbus?" He said yes, he is working on that
Expressway over there.
He said they could use five more men. There were
three or four men around the office. He asked them
who was out of work.
It was for that reason, he said, that he struck Bucy's name.
He testified that Thomas' position as stated by him many
times was that unless men were sent out from the hall,
their names should not be taken off the list, and that was
the position taken by Bucy. As a practical matter, Jackson
removed names from the list when he discovered or was
told that they were working, by a telephone call from the
men who are working, or a telephone call from him to
them, or personal contact. The main problem considered
by Jackson was whether or not men were or were not
available, whether they got their own jobs, or whether they
were referred by him. In regard to the meeting of Friday,
October 13, Jackson testified that he first had said that the
Union could not keep a man from working on a job when
he had obtained his own employment, he had said the
same at other times, taking the position that under the
Taft-Hartley Act, and the general constitution of the
International, the Act required him to take a man's
application "for processing." Jackson said that he never
had stopped any nonunion persons from signing the
register, nor did he tell Fred Powell that he could not go
out to work before he paid his dues or initiation fees. He
confirmed the testimony of Powell that Powell had applied
for membership on March 11 after having made
application therefor in January 1966, so that on March 11
he became a working member of Local Union 136. He
denied that he had told Powell that Powell would have to
pay money before he would send him out, and that Powell
was the one who brought up the question of money-that
is, the amount required for initiation fee and dues.
An examination of the portions of the referral register in
evidence discloses that in effect it constituted a flexible
worksheet, and the testimony of Jackson in connection
with how a man's name appeared thereon and how that
man's name might be struck therefrom, is corroborated by
the testimony of other witnesses who testified at the
hearing. The keeping of the register and the availability or
nonavailability of men for work has been shown to be a
rather informal but practical method of recordkeeping
which, nevertheless, served the purpose for which it was
and is intended. The register was accessible to members
to examine and to enter their names as available for work
which fact, I believe, puts the burden on the General
Counsel to show why Thomas, who claimed availability for
such a long period of time and spent as much time at the
union hall and in the clubroom as he said he did, and why
Thomas did not notice during the period of early February
1966 through April 28, that his name had been lined off the
register because of his acceptance of the Kresge job. The
Respondents are not accused of falsifying or altering the
referral list in anyway-the whole of the controversy
concerning the referral list as shown by the register seems
to revolve around the criticism as to the way the Union
through Jackson administered the assignment of jobs.
It seems to me that the failure of Thomas to reregister
for nearly 3 months destroys his contention that he was
available for work during all of this period of time, and that
his estimation that there was no work available that he
knew of, ergo, there was no reason for him to look at the
register, is specious.
The facts do not demonstrate, as contended by the
General Counsel, that Thomas was available for work at all
times and that the record reveals that the true reason
Thomas was not referred was because Thomas and
Jackson had been at odds for several years concerning
matters of union policy and Jackson's referral practices,
and that as a reprisal for Thomas' opposition, Jackson
consistently denied Thomas' referrals. This is particularly
true when it is considered that all members of Local Union
136 were aware of the fact that they could obtain jobs on
their own by application for employment at a jobsite.
1. Comment on Motion to Reopen Hearing
In his brief in support of his motion to reopen the record
in this proceeding, counsel for the General Counsel asserts
that I curtailed examination of Jackson and denied
General Counsel the opportunity to fully examine the
witness under rule 43(b) of the Rules of Civil Procedure.
As a general rule, a litigant who does not call a witness as
an unwilling or hostile witness vouches for his credibility.
Under rule 43(b), a party litigant calling an adverse party
or agent vouches at least to some extent for the credibility
of the adverse party or its officer or agent, and cannot
select the adverse party's testimony which is favorable
and reject the testimony of that party which stands
uncontradicted and unfavorable. Further, under rule 43(b),
in permitting an adverse party to be called and
interrogated as on cross-examination, the Trial Examiner
may exercise discretion in controlling examination , and its
use should not be permitted to annoy or harass an adverse
party. In the instant case, although counsel did not so
announce, it may be assumed that Jackson was called as a
hostile witness. For that reason, the Trial Examiner
allowed extensive examination under rule 43(b), to the
point where examining counsel referred to and used a
pretrial statement of the witness taken some 4 months
previously, by counsel himself, to elicit yes or no answers
from the witness. Counsel himself, if unable to prove
LOCAL UNION 136 , CARPENTERS 1057
statements made by the witness by other direct testimony,
might just as well have attempted to take the stand and
read the statement into the record as the testimony of the
witness. In refusing to allow an abuse of the rule, I
exercised my own sound discretion. Rule 43(b) may not be
severed from the meaning and intent of rule 43(a).
Concerning the rebuttal testimony of Bucy it would have
been permissible, of course, for counsel for the General
Counsel to call witnesses appropriately to deny, explain, or
discredit the facts adduced through witnesses called by
the Respondents; but it would have been improper to allow
to him to have introduced facts or witnesses which might
appropriately have been introduced by him in his case-in-
chief. At the time Bucy was called as a rebuttal witness,
and at the time of the questions vouched to him by
counsel, both he and Jackson had been thoroughly and
completely examined and cross-examined concerning any
phase of the case-in-chief wherein Bucy had appeared.
J. The Legality of the 1964-1965-1966 Contract
Union-Security Clause
The complaint alleges that contractual requirements
pertaining to conditions of hire and tenure of employment,
as contained within the agreement between the
Association and the Respondent Local Union 136, do not
comply with requirements of Section 8(a)(3) as modified by
Section 8(f) of the Act. Section 8(f) provides in part that:
(f) It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction
industry to make an agreement covering employees
engaged (or who, upon their employment, will be
engaged) in the building and construction industry
with a labor organization of which building and
construction employees are members (not
established, maintained, or assisted by any action
defined in section 8(a) of this Act as an unfair labor
practice) because ... (2) such agreement requires as
a condition of employment, membership in such labor
organization after the seventh day following the
beginning of such employment or the effective date of
the agreement, whichever is later ....
This part of the complaint should be dismissed. The
contract provision [article 19, G.C. Exh. 2] properly
interpreted means that at the end of the first 7 days the
Union may notify the contractor of the fact that the new
man has not yet joined the Union, but that the new man
thereafter has 7 more days to join at the end thereof, which
makes this a 14-day union-security clause not requiring
discharge of a new man within 7 days. It seems apparent
that the 7-day notice redounds to the benefit of the new
man.
K. Alleged Requirement for Membership, Application
Therefor, and Payment of Initiation Fee
Allegations of violations of the Act concerning
assertions that persons are required to be_ members of, or
applicants for members of, the Union and to pay or
partially pay the initiation fee before he can be referred to
a job fails for failure of proof. Uncontradicted is the fact
that Jackson frequently told the membership of the Union
that nonmembers had the right to be referred and the
evidence shows instances where nonmembers were
referred. The testimony relied upon by the General
Counsel is that of Powell in connection with his
conversations with Jackson in which he asked Jackson the
requirements for union membership at a time when Powell
thought he could be referred on a "white card" or work
permit arrangement. While Jackson did explain the
initiation and dues requirements, there is no evidence that
he told Powell that he had to join the Union or pay any
money before Powell could be referred to a job. Powell
himself did not make such an assertion.
The brief filed on behalf of the General Counsel herein
has been carefully examined and I have been disappointed
to find many misstatements contained therein and
inferences or conclusions drawn which are not supported
by the facts contained within the record. It has not been
proven that any threat was made against Thomas by
Jackson or any other responsible official or by action of the
membership of the Local to fine or expel Thomas or in any
way discriminate against him. The isolated incidents
intended to prove the so-called threats must bear close
scrutiny in the whole context of the case.
The alleged threats to discipline Thomas because he
was a "reformer," or because he threatened to seek
redress through the Board, in the circumstances of each
incident, appear, in the face of reason and logic, to be
nothing more or less than artificial and farfetched claims
of impending jeopardy to Thomas' rights as a union
member. When Jackson implied to Thomas that if he felt
the way he did he might as well turn in his card, Jackson
was the subject of vicious abuse by Thomas because the
latter was claiming job rights which the facts show he was
not entitled to. On this occasion, May 6, two credible
witnesses indicated that Thomas probably was inebriated,
and that Jackson, under provocation, exercised
commendable restraint. Thomas himself conceded that it
was hearsay (and Bucy confirmed this) that caused
Thomas to claim he was threatened with loss of jobs or
membership because he had requested a member of
Congress to intercede in the dispute regarding job
referrals. As to Thomas' claim that International
Representative Sauer had, during a September meeting,
threatened to "get his book," it was at a time when
Thomas had announced that he would cross his Union's
picket line if his employer, Buckey, refused to sign a union
contract-a cardinal sin in the eyes of the Union. It was in
this connection that Thomas said he "would prefer
charges against the Local" with the Board. Again,
disregarding Pimm's offer to assist him in the adjustment
of his grievance against Jackson, Thomas construed
Pimm's suggestion that Thomas might find work away
from the Newark area as meaning that he would be
prevented from obtaining work through the Union's job-
referral system.
Thomas I believe to be a self-styled reformer, since
there is no proof of any organized effort by any members of
the Union to adopt his suggestion or support his effort to
change or modify the job-referral practices which, except
possibly Bucy, seem to have met with the approval of
Local Union 136 as a whole.
The only witness whose credibility I have reason to
doubt is Thomas. In material respects, he was equivocal
and evasive when cross-examined. I believe Brunner and
Jackson where their testimony is in conflict with that of
Thomas. As to the other witnesses who appeared, I believe
their testimony to be accurate within the bounds of human
fallibility.
Concluding Findings
The gravamen of this case is founded on the question of
whether Thomas was willfully deprived by the
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents of available work by a disregard of his rights
to be referred to jobs as a properly registered and
competent carpenter in violation of Section 8(b)(1)(A) and
(2) of the Act.
As noted above, the hiring hall practices as established
in the 1964-1965-1966, contract between the Association
and the District Council (which will terminate in May
1967), was not followed to the letter by the tacit and mutual
consent of the parties, except as to those provisions which
were regarded by the Association and Respondent Local
Union 136 as practicable and workable. Jobs were not
filled exclusively by referral of a man by the Union to a
contractor; carpenters frequently sought and obtained
jobs and were hired directly by contractors at a jobsite,
and the right of a contractor to reject for employment any
man because that man was not deemed qualified for the
job is acknowledged both in the contract and by practice. I
find that the contract (agreement) did not and does not
now constitute an unlawful arrangement, understanding,
or practice requiring membership in or clearance by the
Respondents or either of them as a condition precedent to
referral to or for employment. The register or referral list
as maintained and used does give priority rights to
members of the Union whose names appear thereon above
the names of others;-that is, members in good standing
who signed the register later. If the first man is referred
and accepted, and works 3 or more days on the job to
which referred, the name of the next man on the list is
moved to the first position for the next referral. The
system is simple and uncomplicated. However, questions
concerning facts governing just who on the register did
hold priority have arisen, as witness the complaint of
Thomas here that he has been discriminated against and
not referred because of his disagreement with the
administering of the referral system and because, as
stated in the complaint, he was a member of a reform of
dissident group within the Union, that he sought or favored
the seeking of reform within the Union, and because he
stated his intention to seek redress of his grievances
against the Respondents with the National Labor
Relations Board.
Private parties may not themselves ordinarily obtain
redress for violations of the Act. Joseph Garner et al. t/a
Central Storage and Transfer Company v. Teamsters,
Chauffeurs and Helpers Local Union No. 776 (AFL), 346
U.S. 485, 490-491; N.L.R.B. v. Indiana & Michigan
Electric Company, 318 U.S. 9, 18; National Licorice
Company v. N.L.R.B., 309 U.S. 350; Amalgamated Utility
Workers v. Consolidated Edison Company of New York,
Inc., 309 U S. 261, 265, 268-269. However, an employee's
right to file charges and otherwise participate in Board
proceedings is protected by Section 7 of the Act. Such
protection is essential if the unfair labor practices
outlawed by Congress are to be prevented, since the
Board-which is the exclusive agency for protecting the
rights of self-organization and collective bargaining
guaranteed by Sections 7 and 8 of the Act-is powerless to
proceed unless a charge is filed. Section 10(a) of the Act.
See Hercules Powder Company v. N.L.R.B., 297 F.2d 424,
433 (C.A. 5); Building Material Teamsters, Local 282
(Crawford Clothes, Inc.) v. N.L.R.B., 275 F.2d 909, 913
(C.A. 2); N.L.R.B. v. Hopwood Retinning Co., 98 F.2d 97,
101 (C.A. 2).
11 The records of the Union reflect that on April 28 Jackson
made seven dues payment entries , crediting Thomas for 6 months
for arrears in dues and 1 month for the current month's dues
It is settled law, therefore, that a union may not cause an
employer to deprive an employee of work-or threaten to
do so-in order to restrict the employee's right to
participate in and initiate unfair labor practice
proceedings against the Union. N.L.R.B. v. Local Union
No. 450, IUOE (Tellepsen Const. Co.), 281 F.2d 313, 317
(C.A. 5), cert. denied 366 U.S. 909, cited with approval
N.L.R.B. v. General Motors Corporation, 373 U.S. 734, 743,
fn. 10; Bordas & Co., 125 NLRB 1335,1336,1348-50, enfd.
in relevant part 288 F.2d 132 (C.A.D.C.); Local 138,
Operating Engineers (Nassau & Suffolk Contractors' Assn.)
v. N.L.R.B., 321 F.2d 130, 136-137 (C.A. 2). Section
8(b)(1)(A) makes it an unfair labor practice for a union to
restrain or coerce employees in the exercise of their
Section 7 rights. To deprive an employee of work, or to
threaten to do so, is a form of restraint and coercion
proscribed by Section 8(b)(1)(A), and, where such action is
geared to the filing of charges with the Board, it would
necessarily tend to deter an employee from exercising that
right. Moreover, to deprive an employee of work, or to
threaten to do so, for filing charges with the Board also
violates Section 8(b)(2) of the Act, which makes it an unfair
labor practice for a union to cause or attempt to cause an
employer to discriminate in violation of Section 8(a)(3).
These sections insulate an employee's job rights from his
membership obligations (other than the obligation to pay
initiation fees and dues). Radio Officers' Union v.
N.L.R.B., 347 U.S. 17,40-42.10
Under the contract between the Association and the
District Council, employer-members of the Association are
required to and in fact do, utilize the Union's hiring hall or
referral system as a source, but not an exclusive source, of
applicants for employment as carpenters meeting required
skills.
The facts, established by the testimony of Thomas,
show that he visited the Union's hiring hall nearly every
day at least twice a day during the times he claims he was
not referred but was entitled to be referred to jobs and at
other times was available for communication by telephone
call either to him or to his wife at his home. Although
Thomas customarily, during early February and to the end
of April 1966, was at the union hall, when he said he was
available for referral, he apparently did not take occasion
to look at the referral register because, according to him,
there was no work so far as he knew that was available.
The uncontradicted testimony of Jackson is to the effect
that Thomas, as well as Bucy, frequently stated opposition
to the procedure for striking from the referral list the name
of a man who got his own job as an employee or a
contractor, claiming that the Union was required to refer
the man in order to strike his name. It is important to
remember that Thomas first registered for a work referral
on about January 31, 1966, and within a period of about 2
days was referred by Jackson to the Kresge store job. The
failure of Thomas to reregister for nearly 3 months, raises a
question as to his credibility, in that he testified on direct
examination that he was available for work during this
whole period of time.
I can find no evidence in the record that any work
referral occurred on any day when it was shown Thomas
was available and not working somewhere else; no
substantial proof was offered that any referral was made
by Jackson by deliberately passing over the name of
Thomas was a member in good standing of Local Union 136 at all
t,mes material herein
LOCAL UNION 136, CARPENTERS
Thomas. The facts are clear that two employers chose not
to employ Thomas because of his lack of qualifications;
that at another time he rejected the referral because he
was contracting a job which eventually did not materialize,
although he accepted a second referral to Zanesville but
was refused employment at the job by the contractor. i i
In the full context of the facts adduced in respect of this
aspect of the case, it seems quite apparent that it would be
an exercise in futility to go into the work record of each
one of more than 200 men whose names appeared during
1966 on the referral record, to have been available for
referral, which of these was referred and when and under
what circumstances, or which of them were refused work
by a contractor or fired from a job, or quit, after starting
work. Shortly, I find that Thomas was referred to jobs in
regular course when eligible for referral.
The debates at the meetings of the Union disclosed heat
and acrimony sometimes flowing from Thomas' attack on
the method by which referrals were made by Jackson, as
well as other matters concerning the internal workings of
the Union. It is not denied that Thomas was responsible
for the eruptions during at least the two meetings
described by President Pimm and John Dugan. If the
effort of Bucy or Thomas or any other member to persuade
a member of Congress to intervene in the administration of
the referral system was resented by other members, the
fact is understandable.
The Respondents, in the brief filed on their behalf, rely
on Cannery Workers Union of the Pacific (Van Camp Sea
Food Co), 159 NLRB 843, wherein the Board reviewed
leading cases bearing on discrimination or alleged
discrimination by unions against members. In its decision
and order in that case the Board, in discussing Local 138,
International Union of Operating Engineers, AFL-CIO
(Charles S. Skura), 148 NLRB 679, 682, and distinguishing
Local 283, UAW (Wisconsin Motor Corporation), 145
NLRB 1097, 1101-02, quoted its language from Skura:
It is true that in Wisconsin Motor the Board held
that the legislative history of Section 8(b)(1)(A)
evidenced a congressional intent not to extend the
protective provisions of Section 8(b)(1)(A) to the
imposition of a fine to compel compliance with
internal union rules and policies and the proviso to
Section 8(b)(1)(A) immunizes a union from Board
remedial action with respect to the enforcement of
internal union rules by means other than job
discrimination. There, unlike the instant case, the
Board was dealing with the union rule which in the
circumstances of that case did not run counter to
other recognized public policies and, therefore, was
not beyond the competence of the Union to adopt and
enforce. In that case the Board was of the opinion that
the Act did not vest it with the authority to police the
internal discipline of the Union short of job
discrimination. By the rule under consideration here,
however, Respondent attempted to regulate its
members' access to the Board processes. Considering
the overriding public interest involved, it is our
opinion that no private organization should be
permitted to prevent or regulate access to the Board,
and a rule requiring exhaustion of internal union
remedies ... to the Board processes is beyond the
" Summarizing what has been set forth above, Jonston rejected
Thomas and hired the man he wanted, Ree rejected Thomas for
employment because he thought Thomas was not qualified for the
1059
lawful competency of a labor organization to enforce
by coercive means. [Emphasis supplied.]
In the instant case, there being no showing of job
discrimination against Thomas, the charges against the
Respondents here are shown to be without foundation.
The regular meetings of active and aggressive local unions
are usually notable for the voicing of strong opinions by
members when matters of policy are up for discussion.
In his brief, discussing the evidence of job availability
and referral of other individuals, the General Counsel has
engaged in an apparent effort to tailor this case to the facts
in United Brotherhood of Carpenters and Joiners of
America, Local 1281, AFL-CIO (Raber-Kief. Inc.), 152
NLRB 1293. In so doing, he has perhaps inadvertently
misstated some important facts and in so doing has
demonstrated, opposite to his contention that Raber-
Kief may be controlling here, the difference between the
actual discrimination shown in Raber-Kief and the lack of
proof of discrimination in the instant case. For further
distinction between what the Board regards as actual
discrimination constituting violations of Section 8(b)(1)(A)
and (2) of the Act and the lack of such discrimination as
appears here, see Local 18, Bricklayers, Masons and
Plasterers' International Union of America, AFL-CIO
(Union County Building Contractors Association), 159
NLRB 303.
The abusive conduct of Thomas against Jackson and his
violent and profane remarks attendent thereto, and his
very language, indicate that he was attempting to engage
in personal vendetta to promote his personal political
ambitions within the confines of the local union leadership
and activity. There is no proof to support the assertion that
he was leading a reform movement; all that is shown is
that he was critical of the policies of the incumbent
administration, but had no positive alternative to offer to
correct the conditions of which he complained which
would not be in conflict with the hiring hall procedures
adopted by Local Union 136 and administered by its
business representative, Jackson.
I find that the General Counsel has failed to carry the
burden of proof of the allegations set forth in the complaint
and that the complaint should be dismissed.
On the basis of the foregoing findings of fact I make the
following:
CONCLUSIONS OF LAW
1. The Respondent , Local Union 136, is a labor
organization within the meaning of Section 2(5) of the Act,
and Harold Jackson, business representative , is its agent
within the meaning of Section 2(13) of the Act.
2. The activities of the Respondent , Local Union 136
occurring in connection with the operations of the
companies involved herein, have a close , intimate, and
substantial relation to trade, traffic, and commerce among
the several States.
3. The alleged unfair labor practices set forth in the
complaint herein have not been proved by the
preponderance of the evidence, and the complaint herein
should be dismissed.
RECOMMENDED ORDER
It is recommended that the Board enter an Order herein
dismissing the complaint in its entirety.
job in hand, and Saylers had no place for him It is not proven that
Jackson had anything to do with the refusal of these men to
employ Thomas