McCormick Construction Co.

National Labor Relations Board - Board Decisions

Mar 15, 1962

136 N.L.R.B. 320 (N.L.R.B. 1962)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein be consolidated, in the absence of the pendency in the RD case of the ques-
tion of whether the election should be held or the petition dismissed, I find no basis
for even inferring the existence of a directive to consider such a question. Therefore,
I consider it outside the scope of my authority in this proceeding to make any
recommendation to the Board with respect to the appropriateness of the remedy
suggested by the EA and the General Counsel.
However, in light of the finding in the CA case of a violation of Section 8(a)(1),
the Board might wish to consider whether it would effectuate the policy of the Act
to overrule the Acting Regional Director's approval of the stipulation for certifica-
tion upon consent election and dismiss the petition in the RD case. I believe it
would be inappropriate for me to make a gratuitous recommendation with respect
to the appropriateness of the Board undertaking consideration of this question or
with respect to how the question should be determined, were it to be considered.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The EA is a labor organization within the meaning of Section 2(5) of the Act.
3. By implanting in the mind of an employee the idea of organizing a movement
to decertify a union which is the recognized bargaining representative for the unit
of which said employee is a member, encouraging him to take such 'action, and ad-
vising him of the initial steps to take, Respondent did initiate such a movement and
thereby has interfered with employees in the exercise of their statutory rights within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
5. None of the allegations of unfair labor practices set forth in paragraphs
numbered 9 and 10 of the complaint herein has been sustained.
6. The allegations set forth in paragraph numbered 8 have been sustained to the
extent of the finding in paragraph numbered 3 hereinabove
[Recommendations omitted from publication.]
McCormick Construction Company and Joseph Hender
Local Union 542, International Union of Operating Engineers,
AFL-CIO and Joseph Hender. Cases Nos. 4-C%1-1670 and
4-CB-421. March 15, 1962
SUPPLEMENTAL DECISION AND ORDER
On March 23, 1960, the Board issued its Decision and Order in the
above-entitled proceeding,' finding that the Respondent Company and
the Respondent Union had engaged in and were engaging in certain
unfair labor practices violative of Section 8(a) (3) and (1) and
Section 8(b) (2) and (1) (A) of the Act, respectively. In brief, the
Board found that the Respondents entered into and maintained a
hiring arrangement which failed to contain certain safeguards re-
quired by the Board as set forth in its Mountain Pacific decision.2
In addition, the Board found that the Respondents by maintaining
and enforcing this arrangement discriminated against Joseph Hender.
1 126 NLRB 1246. (Member Fanning not participating )
2 Mountain Pacific Chapter of the Associated General Contractors, Inc, et al, 119
NLRB 883
136 NLRB No. 33.
HOUSTON BUILDING & CONSTRUCTION TRADES COUNCIL 321
On October 31, 1960, the Board filed in the United States Court of
Appeals for the Third Circuit a petition for enforcement of its De-
cision and Order. On April 4, 1961, the court remanded this case to
the Board "for further consideration and determination of the proper
party respondent." 3 On April 17, 1961, the Supreme Court of the
United States handed down its decision in Local 357, Teamsters 4
which rejected the Board's determination in the Mountain Pacific
case that an exclusive hiring arrangement was discriminatory unless
it contained certain safeguards. In the News Syndicate case,' the
Court also rejected the Board's conclusion that an agreement which
gives foremen hiring authority was necessarily unlawful where the
foremen were members of the union and the union's constitution pro-
vides that foremen hire only members of the union.
In light of these decisions, the Board 6 has reexamined its con-
clusions in the above-entitled consolidated proceeding and concludes
that the record does not preponderantly establish either that the
parties operated an unlawful hiring arrangement, or that the refusal
of employment to Joseph Hender was violative of the Act.' Accord-
ingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
3 In view of our dismissal of the complaint herein , we need not pass on this issue.
4Local 357 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America ( Los Angeles -Seattle Motor Express ) v. N.L.R . B., 356 U.S. 667.
6 N.L.R.B. v. News Syndicate Company , Inc. and New York Mailers ' Union No. 6, Inter-
national Typographical Union , AFL-CIO, 365 U.S. 695.
6Pursuant to the provision of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Leedom , Fanning, and Brown].
I Subsequent to the hearing herein , while the case was on remand from the Circuit Court
of Appeals for the Third Circuit , Local Union 542, International Union of Operating
Engineers , alleged that Hender was discriminated against because he opposed the adminis-
tration of the Local Union by a trusteeship which was established by the International
Union and was in existence during the alleged unfair labor practices . No evidence dealing
with the trusteeship or Hender 's position with respect thereto was presented at the hearing.
Having considered the foregoing assertion in the nature of a motion to adduce additional
evidence regarding Hender ' s employment , we are constrained to deny such motion as it
does not deal with newly discovered evidence or evidence that was not available at the
time of the hearing . Sheet Metal Workers International Association , Local Union No. 99
( Dohrmann Hotel supply Company ), 120 NLRB 1366, 1367.
Houston Building and Construction Trades Council i and Claude
Everett Construction Company. Case No. 23-CP-2. March 16,
1960
DECISION AND ORDER
On July 28,1961, Trial Examiner William F. Scharnikow issued his
Intermediate Report in the above-entitled proceeding, finding that the
I The name of the Respondent appears as amended at the hearing.
136 NLRB No. 28.