Millwrights & Machinery Erectors, Local 1510

National Labor Relations Board - Board Decisions

Jun 9, 1965

152 N.L.R.B. 1374 (N.L.R.B. 1965)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 16, shall, after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 16, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.3
In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 16, in writing, within
10 days from the date of receipt of this Order, what steps the Respondent has taken to
comply herewith"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify the employees that:
WE WILL NOT apply or enforce our plant rules to prevent employees from
engaging in union activities during their nonworking time in nonworking plant
areas.
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by suspending
them or by discharging them for engaging in union activities on our parking lot
during their nonworking time.
WE WILL offer immediate and full reinstatement to Charles A. Johnston to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him and Glen R. Swaner whole for
any loss of earnings resulting from our discrimination against them as provided
in the Decision issued by the Trial Examiner of the National Labor Relations
Board.
WE WILL NOT in like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed by Section 7 of the National
Labor Relations Act.
BAUER ALUMINUM COMPANY,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States in his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces
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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
Millwrights & Machinery Erectors , Local Union 1510 , affiliated
with the United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO (Mulberry Construction & Welding Co.) and
Lige Lee. Case No. 12-CB-755. June 9, 1965
DECISION AND ORDER
On February 12, 1965, Trial Examiner Reeves R. Milton issued his
Decision in the above-entitled proceeding, finding that the Respond-
152 NLRB No. 132.
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1375
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed, as set
forth in the attached Trial Examiners's Decision. Thereafter, the
General Counsel filed exceptions to the Decision and a supporting
brief.
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the case, including the
exceptions and brief, and find merit in certain of the General Coun-
sel's exceptions. Accordingly, the Board adopts the Trial Examiner's
findings and conclusions only to the extent that they are consistent with
the Decision herein.
1. The Trial Examiner found that Respondent did not violate Sec-
tion 8(b) (2) of the Act on April 27, 1964, by causing Mulberry Con-
struction & Welding Co. to refuse to hire Lige Lee. We do not agree
with this conclusion.
As more fully detailed in the Trial Examiner's Decision, the record
indicates that the Employer requested Lee's referral as millwright fore-
man on the Tenoroc Mines job in the latter part of March 1964, and
Respondent's business agent, Turner, refused to refer Lee as foreman
on the grounds that he had not signed the out-of-work list and had
been giving away millwright work.
On April 6, shortly after another millwright had been referred as
foreman, Lee was referred to the Tenoroc Mines job as a millwright
despite his not having signed the out-of-work list. Upon learning that
he had not been referred as foreman, Lee refused the referral and
brought charges against Turner before Respondent's executive board,
demanding restitution of wages lost as a result of Turner's refusal to
refer him as foreman. At the April 9 or 10 meeting of the executive
board, at which the board voted unanimously to support Turner, Lyon,
secretary of the board, warned Lee that if he took the matter to the
Labor Board he could be fined, and reminded Lee of a union member
who took a case to the Labor Board, got about $2,000 out of it, and who
since has had very little, if any, work.
Lee filed the charges herein on April 23. On April 24, Lee signed
the out-of-work list and was referred to Tenoroc Mines as a millwright
and told to report for work on Monday morning, April 27. When he
reported on the morning of April 27 and was told that he could go to
work as a millwright, but not as foreman, Lee rejected the job offer and
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left the jobsite. Before he left, however, Lee spoke with Howell,
Respondent's steward on the job, who had been promoted to foreman
that morning at the direction or request of Respondent's business agent.
Howell urged Lee to accept a millwright opening and expressed the
opinion that they, Turner, and the Company could straighten out the
foreman situation within 2 weeks.
Several hours later on the same morning, Lee returned to the jobsite,
accompanied by an attorney from the Board's Tampa Regional Office,
and declared to Superintendent Curry that he was ready to go to work
as a millwright. After indicating his consent to Lee's employment,
Curry sent Lee to Howell, "in order that he [Curry] not get in trouble
with the Union." Lee thereupon told Howell he was ready to go to
work. Howell, upon being informed that the man with Lee was an
attorney for the Labor Board and that Lee had filed charges against
the Respondent, urged Lee to withdraw the charges and Lee refused
to do so. Curry insisted that Howell decided whether Lee should be
employed whereupon Howell informed Lee that he would neither
employ Lee nor assign a reason for not doing so through fear that he
may be misquoted or called to account.
Insofar as it alleges a violation of Section 8(b) (2), the complaint
is limited to the events of April 27, recounted here. In finding that
Respondent's steward, Howell, was not unlawfully motivated in caus-
ing Lee to be refused employment on April 27, the Trial Examiner
found that Lee was denied employment because he was not qualified to
fill the only vacancy available, as a welder, at the time he proclaimed
his availability for employment. We cannot accept this interpretation
of the events of April 27. It is clear on the record that Lee was not only
offered employment as a millwright, but urged by both Howell and
Curry to accept such employment when he first appeared at the jobsite
on April 27. Nevertheless, when Lee returned to the jobsite a few
hours later on the same morning, Howell refused to employ him and
explicitly declined to assign a reason for the refusal ; Lee was not told
that his ineligibility for the opening urged upon him a few hours
earlier derived from his not being qualified as a welder. Neither Curry
nor Howell had called the union hall during Lee's brief absence from
the jobsite, and the record discloses no change in either the composition
of the work force or the requirement of the job which might explain the
sudden unavailability of the job opening urged upon Lee only a few
hours earlier.
The only intervening circumstances to account for the abrupt reap-
praisal of Lee's employment qualifications was his reappearance on
the jobsite in the company of a Board attorney and his concurrent
announcement that he had filed charges against Respondent. We
believe that this action taken by Lee against Respondent was the rea-
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1377
son why the latter's steward rejected and caused Mulberry Construc-
tion & Welding Co. not to hire him. It accordingly follows, and we
find, that Respondent caused Mulberry Construction & Welding Co.
to discriminate against Lee, and thereby violated Section 8(b) (2) and
(1) (A) of the Act.
The Trial Examiner further found that Respondent had not vio-
lated Section 8(b) (1) (A) by reason of Lyon's remarks to Lee at the
April 9 or 10 meeting of Respondent's executive board. At this meet-
ing, Lyon stated, in substance, that Lee could be fined if he took his
case to the Board, and reminded Lee of the case of a member who had
previously filed unfair labor practice charges against Respondent and,
as a result, had received little, if any, work since that time. Unlike the
Trial Examiner, we do not view Lyon's remarks as being couched in
vague and broad language from which conflicting inferences may be
drawn or as not being unlawful because they were barren of any express
threats of recrimination if Lee took his case to the Labor Board, there
being "only the possibility of such action." Rather, we find that Lyon's
remarks regarding the fine and loss of work were clearly threatening
and coercive and violative of Section 8(b) (1) (A) of the Act.'
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described above, occurring in con-
nection with the operations of Mulberry Construction & Welding Co.,
have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow thereof.
THE REMEDY
In order to remedy the unfair labor practices found, we shall order
the Respondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of the Act.
Having found that Respondent unlawfully caused Mulberry Con-
struction & Welding Co. to refuse employment to Lige Lee, we shall
order Respondent to notify Mulberry Construction & Welding Co. and
Lee that it has no objection to the employment of Lee. In addition, we
shall order Respondent to make Lee whole for any loss of pay he may
have suffered as a result of having caused Mulberry Construction &
Welding Co. to refuse him employment on April 27, 1964. The loss
of backpay shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. TV. Woolworth Company, 90 NLRB 289, and
'Local 138 , International Union of Operating Engineers , AFL-CIO ( Charles S. Sknra),
148 NLRE 679 In view of our findings and Order herein, we need not pass upon the
General Counsel's exceptions taken to the failure of the Trial Examiner to make other
additional findings
7 8 9-7 3 0-6 G-v o f 15 2-8 8
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall include the payment of interest at the rate of 6 percent per annum,
to be computed in the manner set forth in Isis Plumbing and Heating
Company, 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, Millwrights & Machinery Erectors, Local Union 1510,
affiliated with the United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, its officers, agents, and representatives, sha11:
1. Cease and desist from :
(a) Causing or attempting to cause Mulberry Construction & Weld-
ing Co. to deny employment to, or in any other manner to discriminate
against, Lige Lee, or any other employee or applicant for employment,
in violation of Section 8 (a) (3) of the Act.
(b) Threatening to fine, deny referral to, or in any other manner to
discriminate against Lige Lee for filing unfair labor practice charges
with the Board, or otherwise participating or cooperating in Board
proceedings.
(c) In any other manner restraining or coercing employees in the
exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds nec-
essary to effectuate the purposes of the Act :
(a) Reimburse and make Lige Lee whole for any loss of pay suf-
fered because of the discrimination against him caused by Respondent,
as set forth in the section of this Decision entitled "The Remedy."
(b) Notify Mulberry Construction & Welding Co. and Lige Lee, in
writing, that it has no objection to the employment of Lee.
(c) Post at its offices and meeting halls, copies of the attached notice
marked "Appendix." 2 Copies of said notice, to be furnished by the
Regional Director for Region 12, shall, after being duly signed by a
representative of Respondent, 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 mail sufficient copies of said notice to the Regional
Director for Region 12 for posting by Mulberry Construction & Weld-
ing Co., at all locations where notices to its employees are customarily
posted, if the Company is willing to do so.
(e) Notify the Regional Director for Region 12, in writing, within
10 days from the date of this Order, what steps have been taken to
comply therewith.
2 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."
MILLWRIGHTS & 1\ZACHINERY ERECTORS , LOCAL 1510 1379
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS , REPRESENTATIVES , AND AGENTS
To ALL EMPLOYEES OF MULBERRY CONSTRUCTION & WELDING CO.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended , you are hereby notified that :
WE WILL NOT cause or attempt to cause Mulberry Construction
& Welding Co . to deny employment to, or in any other manner
discriminate against, Lige Lee, or any other employee or applicant
for employment , in violation of Section 8 (a) (3) of the Act.
WE WILL NOT threaten to fine, deny job referral to, or in any
other way discriminate against Lige Lee in the event that he file
unfair labor practice charges with the Board or otherwise partici-
pate or cooperate in Board proceedings.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of rights guaranteed in the Act.
WE WILL reimburse and make whole Lige Lee for any loss of pay
suffered by him because of having caused Mulberry Construction
& Welding Co . to deny him employment.
WE WILL notify , in writing, Mulberry Construction & Welding
Co. and Lige Lee that we have no objection to the employment of
Lee.
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL UNION
1510, AFFILIATED WITH THE UNITED BROTHERHOOD
OP CARPENTERS & JOINERS OF AMERICA, AFL-CIO,
Union.
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.
Employees may communicate directly with the Board's Regional
Office, 706 Federal Office Building, 500 Zack Street, Tampa, Florida,
Telephone No. 228-7711, if they have any question concerning this
notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 23, 1964, a complaint was issued on June 29, 1964,
against Millwrights & Machinery Erectors , Local Union 1510, affiliated with the
United Brotherhood of Carpenters & Joiners of America, AFL-CIO , herein called
the Respondent Union. The complaint , as amended , alleges in substance that the
Respondent and its agents , by their discriminatory treatment of Lige Leee because
he filed unfair labor practice charges against the Respondent Union, thereby vio-
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated Section 8(b)(1)(A) and (2 ) of the National Labor Relations Act, as amended
(29 U.S.C. 151, et seq. ). The Respondent in its answers admits certain allegations
of the complaint but denies the commission of any unfair labor practices.
On September 9, 10, and 11, 1964, a hearing was held before Trial Examiner
Reeves R. Hilton at Tampa, Florida . At the conclusion of the hearing the parties
were afforded opportunity to present oral argument and to file briefs . Thereafter,
about October 19, 1964 , I received briefs from counsel for the General Counsel and
the Respondent , which I have fully considered.
Upon the entire record in this case , and from my observations of the witnesses as
they testified , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF MULBERRY CONSTRUCTION & WELDING CO.
The complaint alleges, and the answer admits, that Mulberry Construction &
Welding Co., herein called Mulberry, is a sole proprietorship, wholly owned by L B.
Norris, and maintains its principal place of business in Mulberry, Florida. Mulberry
is primarily engaged in the erection and servicing of machinery installations for vari-
ous industrial firms in Florida, and at times material herein has been involved in the
erection of a draglme at Tenoroc Mines, Lakeland, Florida. Mulberry annually
grosses in excess of $ 1 million from its business operations and its out -of-State pur-
chases for steel and other raw materials is in excess of $50,000 per year.
I find that Mulberry is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization as defined in Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues; the individuals involved
The complaint alleges that: (1) On or about April 10, 1964, the Respondent
Union, through Robert B. Lyons, threatened Lige Lee with loss of his union mem-
bership if he sought to vindicate his rights under the Act; (2) on or about April 27,
1964, the Respondent Union, through Carl Howell and Eugene Turner, caused, or
attempted to cause, Mulberry to refuse to hire Lee because he had filed a charge with
the Board and /or because a Board agent had accompanied him to the jobsite; and
(3) since about April 27, 1964, the Respondent Union, through Howell and Turner,
caused or attempted to cause Mulberry to refuse future employment to Lee unless
and until he withdrew his charge filed against the Respondent Union and/or ceased
bringing Board agents to the jobsite.
The Respondent Union denies that it engaged in the foregoing acts and conduct.
It is undisputed that Turner is business representative of the Union, that Lyons
holds the office of recording secretary and was foreman for a short time at Tenoroc
Mines, and that Howell succeeded Lyons as foreman on that job.
Turner stated the Local has about 155 members.
Lee, a journeyman millwright, has been a member of the Union since early 1957.
As noted above, L B. Norris is the sole owner of Mulberry and James L. Curry
was employed as superintendent on the jobs involved herein.
B. Background of the case
The record discloses that the Respondent Union and the Florida West Coast Chap-
ter of the Associated General Contractors of America, Inc., which represents vari-
ous employers in the area for the purposes of collective bargaining, including Mul-
berry, have had contractual relations for a number of years, the current agreement
being effective from April 1, 1964, to March 31, 1967.
Mulberry and the Respondent Union also executed a hiring hall agreement, appar-
ently in 1959, whereby the Respondent Union was and is the exclusive source of
millwright employees employed by Mulberry, which the parties stipulated was in
effect at all times material herein In brief, the agreement provides, inter alia, for
the registration and referral of qualified applicants, on a nondiscriminatory basis,
in the order of their standing on out-of-work lists maintained by the Respondent
Union. The agreement, as amended, further provides that when a registrant is
referred to a job and is actually employed for more than 3 days, his name shall be
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1381
removed from the list until such time as his employment has been terminated, "at
which time he shall, upon application, be re-registered at the bottom of the appro-
priate list under which he is entitled to be registered "
The Respondent Union established office procedures covering the registration and
referral of job applicants in accordance with the hiring hall agreement, which pro-
cedures were posted on the bulletin board at the union hall. Likewise posted, about
February 12, 1963, was a notice stating that the agreement and procedures had been
amended to provide that when an applicant refuses to accept a job referral his name
is removed from the list and he must re-register and be placed at the bottom thereof.
The complaint does not challenge the validity of the hiring hall agreement or the
Respondent Union's hiring procedures, nor does it allege the discriminatory appli-
cation or enforcement of the agreement or procedures in respect to the employment
of Lee or any other individual.
At the hearing much time was spent on background evidence and events leading
to the filing of the present charges which events, although occurring practically simul-
taneously with the alleged unlawful conduct of the Respondent Union, are not
alleged as unfair labor practices in the complaint. I have considered this evidence
as "shedding light" upon, or in explanation of, the unfair labor practices set forth in
the complaint.
As background the General Counsel also introduced into evidence a copy of the
Board's Decision and Order entered about July 3, 1959, pursuant to a settlement
stipulation in Cases Nos. 12-CB-15, 12-CB-140, 12-CB-141, 12-CB-193, 12-CB-
196, and 12-CB-209, in which Local 1510, Turner, and Carpenters Union 2326
were named as Respondents and the Florida West Coast Contractors Association and
certain employers (not Mulberry) were named as Parties to the Contract. The
charges in these cases were filed by C. F. Moon and Tucker Hyde, members of
Local 1510. The Order, in substance, provides, intei alia, that Respondent Local
1510 and Turner cease and desist from maintaining or enforcing any agreement
which conditioned employment or the retention of employment upon membership
in Local 1510, or upon clearance or approval of the Local and from preferring
charges within Local 1510, or taking disciplinary action against Moon and Tucker
because they filed unfair labor practice charges. Affirmatively, the Order directed
that Local 1510 pay Moon $2,048.54 and Hyde $1,006.30 for losses suffered by
them and to post appropriate notices and to mail a copy thereof to each and every
member of the Local. The Respondent Union complied with the terms of the
Order and the General Counsel concedes that no subsequent Orders have been issued
against the Respondent Union.
However, the General Counsel announced at the hearing, "... it is the intention
of this Region to seek an entry of a Court Decree based upon this particular order,
and possible violations of that order which have come up during this particular pro-
ceeding " In line with that declaration the General Counsel persistently attempted
to prove in this hearing that the Respondent Union has not in fact complied with
the terms of the Order, in that it had continued its discriminatory treatment of Moon
and Hyde insofar as employment was concerned. I refused to accept evidence of
this nature because it was not an issue in the case and I rejected the General Coun-
sel's offer of proof pertaining to this type of testimony.
C. Chronology of events
1. The jobs involved
As related by Curry and Norris, Mulberry obtained a contract to build a drag-
line for Agricultural Chemical Corporation at Fort Meade, Florida, herein called
the Fort Meade job, which project commenced in November 1963 and was com-
pleted about March 27, 1964.
Prior to the completion of this job, Mulberry secured a contract to build a drag-
line for another company at Tenoroc Mines, located near Lakeland, Florida, herein
referred to as the Tenoroc Mines or Tenoroc job, which project commenced around
April 1, 1964, and was completed sometime the following July.
Lee, an experienced millwright and member in good standing in the Respondent
Union, was referred to the Fort Meade job as foreman by Turner in November
1963, which was agreeable to Curry. Lee was employed on the job until its com-
pletion and was foreman of all millwrights employed thereon (seemingly, Mulberry
averaged about four millwrights), including Frank Veasey. Here it might be noted
that Lee and his wife, a total invalid, lived in Tampa, which was within commuting
distance of the above projects.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The dispute concerning the transfer of Lee to the Tenoroc Mines job
Curry spoke to Lee and Veasey about working on the Tenoroc Mines job on
several occasions during March. About March 26 or 27, Curry met with Turner,
Lee, and Veasey at the Fort Meade job, at which time Curry asked Turner to let
Lee and Veasey transfer directly to the Tenoroc Mines job, as foreman and journey-
man, respectively. Curry could not recall whether Turner referred to the existing
agreement or hiring hall procedures, but he did state that while he "could not send
them over at that time ... he would send [them] if they would come in [the hall] and
sign up." The meeting then ended. Curry had no conversation with Lee on this
occasion as to whether he would, or would not, sign up at the hiring hall upon com-
pletion of the Fort Meade job. In the past Curry had requested Turner to refer
Lee to jobs on four or five occasions and each time Turner complied with his request
without any mention of signing the out-of-work list However, Curry was not famil-
iar with the Union's referral procedures and he had no knowledge whether Lee had
or had not signed up on these occasions.
Turner said he told Curry that Lee and Veasey would have to sign the out-of-work
list in accordance with hiring hall procedures and that they knew the rules as he did.
Veasey testified to the same effect as Turner concerning the meeting
Lee testified that about the middle of March, he asked Turner if he could go on
the Tenoroc job without signing up and Turner said, "It's all right, just as long as
you are working for the same company." Lee heard nothing further in the matter
until he "walked in" on the meeting of March 26 or 27 and heard Turner say he
was "not going to let them take us over" to the Tenoroc job. At that point Lee
walked away from the group and returned to work. Later that day Curry told him
that he thought he would go on the new job, that he would call Turner on March 31.
As the Tenoroc job was to begin April 1, Curry telephoned Turner on March 30
or 31, to inquire about Lee and Veasey and Turner said they had not been referred
because they had not signed the out-of-work list. Turner further stated that Lee
had been " lenient" toward Mulberry in that he was "giving away" millwrights' work
to other crafts and he was sending out two men "who would give him trouble."
Curry then told Turner "to send me two millwrights."
Shortly after the above conversation, Norris telephoned Turner to ask why he was
not referring Lee and Veasey to Tenoroc and Turner stated that Curry, and appar-
ently Lee, were "giving away" millwrights' work and that he was sending "a man
over there that would straighten us out." Norris denied the Company was responsi-
ble for any work jurisdictional dispute, which they discussed briefly, and the con-
versation ended with Norris stating that if Turner would not refer Lee and Veasey
"just send me two good men."
Lyons and Howell were referred and reported at the Tenoroc job about April 2.
Lyons acted as foreman on the job
Turner admitted that in the period from about March 27 to April 2, Curry tele-
phoned him regarding the referral of Lee and Veasey and he told Curry he could not
refer them because they had not yet signed up.
3. The referral of Lee and Veasey on April 6
Shortly after Lyons and Howell had been employed, Turner met with Norris in
the latter's office, seemingly to discuss the employment of additional millwrights, and
in the course of their discussion Norris said he felt sorry for Lee, that he was a
good worker, and requested that he be referred to the Tenoroc job. Although Lee
had not signed the out-of-work list Turner agreed to refer him to the job and there-
after instructed his secretary to refer him, which she did on April 6. That evening
Lee called Turner and asked why he was not being sent to the job as foreman and
Turner said the Company already had a foreman. Lee stated he would not go on
the job except as foreman and Turner said he had been given a referral and if he
was refusing the job that was up to him. Lee obviously complained of Turner's
refusal to refer him to the job as foreman and Turner said he would call a meeting
of the executive board the evening of April 9 or 10 to hear his complaint and the
conversation ended.
While Norris' recollection concerning this meeting was hazy, he did recall talking
to Turner around April 2, regarding the employment of additional men, and that
he asked Turner to refer Lee and Veasey to Tenoroc the following week, around
April 6.
Lee admitted that the girl at the hiring hall telephoned him on April 6 and told
him he was to report for work at the Tenoroc job. Lee asked if he was being
referred as foreman and she told him no, that Lyons was foreman on the job. That
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1383
evening Lee called Turner to inquire if he was being referred as foreman and Turner
said no, that Lyons was already on the job as foreman. Lee then asked if Curry had
called him on March 31, and requested that he be sent to the job as foreman and
Turner replied, "No, he lust called for two men, not you." Lee thereupon told
Turner, "You ain't going to get by doin' me like this " Turner suggested that Lee
could take it up with the executive board if he wished and that he would call a
meeting of the board the evening of April 9 or 10. This was satisfactory to Lee and
the conversation ended.
Veasey testified he signed the out-of-work list shortly after the completion of the
Fort Meade job and that he was referred to the Tenoroc job about April 6 How-
ever, he turned down the referral because he did not believe he could get along with
Lyons who was foreman on the project. Veasey also stated that he and Lee dis-
cussed the Tenoroc situation on several occasions and Lee said he would not work
on this job unless he was made foreman.
As set forth below, Lee filed charges and appeared before the executive board on
April 9 or 10. The charges were rejected by the board.
Norris testified that around April 10, Turner came to his office and informed him
that Lee had preferred charges against him with the executive board and that a
hearing thereon had been held or scheduled to be held. In the course of their
conversation Norris asked Turner to refer Lee to Tenoroc as a journeyman rather
than as foreman and Turner said that he would, as soon as Lee signed the out-of-
work list.
Turner said he met with Norris around April 10 and informed him Lee had filed
charges within the Local and that the executive board had instructed him that Lee
would have to sign up before he could be referred to the Tenoroc job Norris stated
he would like to have Lee on the job as a journeyman and Turner said he would
send him out, if he would sign up. Norris said he would talk to Lee about signing
the list. Turner heard nothing further from Norris until April 23.
4. The events of April 23; the decision to discharge Lyons,
the filing of unfair labor practice charges
Norris and Curry became dissatisfied with Lyons' performance as foreman, so
Norris called Turner on April 23 to tell him that Lyons would have to be replaced.
Norris also asked for Lee and Turner said if Lee would sign up he would send him
over as foreman. Norris passed this information to Curry.
Curry stated that Turner came to the jobsite the same day and agreed that Lyons
should be removed as foreman. Curry then inquired about Lee coming on as fore-
man and Turner stated Lee "hadn't come in and signed up, and if he didn't would I
agree to put Carl [Howell] on as foreman. And I agreed to it." The same evening
Curry telephoned Lee to tell him to sign up and that he would be referred to the job
as foreman. Lee said he would sign the list.
On the morning of April 23, Lee filed the present unfair labor practice charges
against the Respondent Union.
Later that day, according to Lee, Curry telephoned and informed him that he,
Curry, had spoken to Turner and Turner had stated that if Lee would sign the out-
of-work list he would send him to the Tenoroc job as foreman. Lee said he would
sign up the next morning, which he did.
Turner testified substantially the same as Norris and Curry concerning the forego-
ing conversations.
5. The events of April 24
Norris related that Turner called him the morning of April 24 to inform him that
Lee had signed up and would report for work Monday morning, April 27. However,
Turner added, "I wish that you would not put him on as foreman" because he was
having "trouble" within the Union and that the "job would probably get along bet-
ter" without him as foreman. Norris, who was aware of the fact that Lee had filed
charges against Turner with the executive board, stated, "Well, if that is what you
want, I will go along with you. Just give me a good foreman and we will put Lige
Lee in as a mechanic on his crew." Norris said Turner may have suggested some-
one as foreman, who was probably acceptable to him. Norris informed Curry of
this conversation and instructed Curry that "when Lige comes out on Monday, do
not put him on as foreman."
Curry testified that Lyons was discharged April 24. The same day Norris and
Curry discussed the foreman situation and they agreed Howell would be made
foreman on Monday morning, April 27. Curry notified Howell that he was fore-
man on the latter date. Curry further stated that Howell was a good foreman and
was still employed in that capacity.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turner's recollection of his conversation with Norris was that Norris said Howell
was a good man, that Curry liked him, and if Turner had no objection he would be
made foreman on the job. Turner stated he had no objection to Howell being made
foreman.
Lee stated that on April 24, the girl at the hiring hall called him and said he was
being referred to the Tenoroc job Lee asked if he was being referred as foreman
and she said no, Lyons was already on the job as foreman. After some reference
to Lyons and the whereabouts of Turner, Lee said he would come to the hall for
his referral slip. Lee secured the slip which was dated April 27 and referred him
to Tenoroc as a millwright.
Lee refused to accept employment as a millwright under the circumstances
described below.
D. The evidence bearing on the alleged unfair labor piactices
1. Lee's meeting with the executive board
As set forth above, Lee was referred to the Tenoroc job on April 6, and when he
complained to Turner about not being referred as foreman, Turner told him he
could take it up with the executive board, which would meet the evening of April 9
or 10 This was satisfactory to Lee.
The executive board, according to the bylaws of the Respondent Union, is com-
posed of all elected officers of the Local and exercises supervision over the business
agent, with the right to remove or suspend him for just cause, subject to ratification
of the membership.
The meeting was held as scheduled and the record shows the following persons
were present: Roy Johnson, president, Macedo, vice president, Lyons, secretary,
and Charles T. Parker, conductor. Lyons also stated Harry Ibex, warden, and Veasey
and Frank Golden, trustees, were also present. Parker said there were seven mem-
bers on the board.
The complaint, as amended, alleges that Lyons threatened Lee with loss of his
union membership if he sought to vindicate his rights under the Act.
Lee testified there were about 10 persons at the meeting, including Turner and
Howell. At the meeting or prior thereto, Lee presented a written charge to the
board wherein he claimed that on March 31 Turner had refused to refer him as
foreman, although requested by the job superintendent, and asked restitution for
wages lost as a result thereof. According to Lee, Turner opened the meeting by
referring to the charges, whereupon Lee inquired if there were some 40 men on the
out-of-work list and Turner replied the figure was higher than that Lee then asked
why he had not referred two men from this list instead of pulling Howell and Lyons
off other jobs and referring them to Tenoroc Mines. Turner replied, "Instead of
dragging Carl Howell from the other job I did Bobby Lyon[s] [because] I thought
he was the best man for the job." Lee further inquired if Curry had requested him
as foreman on March 31, and Turner said he was sure Curry "called for two men "
Lee then read a sworn statement he had obtained from Curry on April 7, the substance
of it being that Curry had asked for Lee as foreman on March 31, and his request
was denied. Turner and Lee then exchanged remarks concerning their telephone
conversation of April 6.
At that point Lyons asked Lee what he was going to do and Lee said, "I don't know,
but I will do something." Lyons then declared, "If you take this to the Labor Board
you could have your book taken from you or [be] fined." When Lee asked if
Lyons was threatening him, Lyons said, no, and added, "but I know of a person who
went and took a case to the Labor Board and ... he got about two thousand dollars
out of it .... He hasn't got to work yet; if he had it's very little." Turner declared,
"He's going to take me to the Labor Board I don't give a damn if he does."
Johnson remarked he "wouldn't believe Lester Curry and his wife, on oath," and
asked Lee to step outside while the board voted. Lee did so and was then advised
the board had voted unanimously in favor of Turner.
Lyons said Turner and Lee outlined their positions regarding Lee's charges and
following a discussion of the hiring procedures, including the fact that a job appli-
cant was required to sign the out-of-work list before he could be referred to a job,
the board excused Lee and others while it considered the charges. The board then
passed a motion sustaining Turner's position and instructing Turner to follow the
Union's procedures for job referrals. Lee was then advised of the board's action and
told that he had to sign the out-of-work list. After this announcement was made,
Lyons advised Lee of his rights within the Union and Lee, who was very much
disturbed, said he "was going to do something about it." Lyons told him he "shouldn't
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1385
be taking outside action against the local union, that it had been done in the past and
it resulted in hardship for the men involved." Lyons also said it was in Lee's best
interest to work through the local and "if he did not abide by the rules and regula-
tions of the Local as well as the United Brotherhood, that he could lose his book."
Lyons said that in the course of their talk about "not going outside of the local
union," he "may have possibly included the NLRB."
Howell testified that Lee read his charges against Turner, to the effect that Turner
had refused to put him on the job as foreman. The board then inquired the reason
therefor and Turner stated Lee had failed and refused to sign the out-of-work list.
The parties then discussed the local's hiring procedures with the board members
pointing out to Lee that a man had to sign up before he could be referred to a job.
Howell was not present when the board considered the charges or when it announced
its decision.
Turner simply stated that he was present during at least part of the board's dis-
cussion of the charges and when it reached the decision that he should continue to
follow the Local's hiring procedures.
Johnson denied making any statement to the effect that he would not believe
Curry or his wife on oath. Howell, Lyons, and Parker corroborated Johnson's
testimony.
2. The events of April 27
In brief, the complaint alleges that on April 27, the Respondent Union, through
Howell and Turner, caused, or attempted to cause, Mulberry to refuse to hire Lee
because he had filed a charge and/or because a Board agent had accompanied him
to the jobsite, and thereafter has continued such conduct unless Lee withdrew his
charge and/or ceased bringing Board agents to the jobsite.
As noted above, Lee filed his unfair labor practice charges the morning of Thurs-
day, April 23, and the record shows they were served on the Respondent Union and
Mulberry on Tuesday, April 28.
Again, as noted above, Lee was notified he was being referred to Tenoroc Mines
as a millwright on April 24, and was to report on the job Monday morning, April 27.
Lee reported at the jobsite about 6:30 the morning of April 27. Lee first met
Howell and repeated his conversation of April 23 with Curry, the gist of it being
that if Lee would sign up, Turner would refer him to the job as foreman. Howell
said he had heard of Curry's talk with Turner around that date. Shortly thereafter
Curry arrived and told Lee, out of Howell's presence, "I can't put you on as foreman
Gene Turner said I had to put Carl Howell on as foreman " Lee answered,
"Okay, I will go home then." Curry asked. "You ain't going to work9" and Lee
replied, "No, I am going back home." Lee thereupon left the jobsite
Curry stated he told Lee he could not put him on as foreman but he could put him
on as a millwright. Curry explained Turner had called Norris and Norris in turn
had told Curry that Lee could not come on the job as foreman. Lee refused to work
as a millwright, stated he was going back to Tampa, and left the jobsite.
Howell testified Lee was at the jobsite when he arrived the morning in question
and Lee stated that he was coming on the job as foreman Howell said he had
heard about it through Turner, who had called him Friday evening, April 24. Curry
then arrived, called Lee aside, and had a brief conversation with him. After the
conversation ended, Lee came by and when Howell asked where he was going, Lee
answered, "I am going home." At the same time Curry told Howell, "You are
going to take over the millwrights this morning." Howell then had a talk with Lee
in the course of which he urged Lee to go to work and expressed the opinion that
the two of them could straighten out the foreman situation with Curry and Turner
within 2 weeks. In fact, Howell told Lee he could have the foreman's job "because
he did not want it if it is going to cause hard feelings or any trouble." Lee rejected
Howell's suggestions and declared, "I am not going to let that little man mess on me
no more." The conversation ended on that note.
Lee thereupon drove to the Regional Office in Tampa where he met with Attorney
Ernest Brenner and informed him what had happened at the jobsite Brenner told
Lee, "I think you should work as a journeyman if they elect to keep down the cost
if there should be any." Brenner and Lee then drove to the jobsite in Brenner's car.
Upon arrival at the jobsite Lee, with Brenner present, told Curry that he was ready
to go to work and asked if Curry had called the hiring hall. Curry said he had not
called the hall and as far as he was concerned Lee could go to work Lee then
introduced Curry to Brenner, whom he identified as "the lawyer from the Labor
Board." Brenner said he would like to speak with Curry, so the two of them went
into Curry's trailer-office. While Brenner and Curry were conferring, Lee talked
with Howell.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curry testified that Lee returned to the jobsite around 11 o'clock accompanied by
Brenner. Lee approached Curry, Brenner was standing some 20 feet away, and
stated he was ready to go to work as a millwright and inquired if Curry had called
the hiring hall Curry said he had not called the hall and that Lee had turned down
the job earlier that morning Lee repeated he was ready to go to work and Curry
said, "Well, I will have to check with my foreman." Lee then introduced Brenner
as "a man from the Labor Board." Brenner stated he would like to talk with Curry
so the three of them went into the trailer-office Lee left shortly thereafter and
Brenner interviewed Curry for about an hour and obtained a signed statement from
him.
While the above interview was being conducted, Lee went over to Howell and
told him he was ready to go to work. Howell said, "It's all right as far as I know
now." Howell asked, "Who is the fellow you got with you?" and Lee replied, "This
is a lawyer from the Labor Board, Mr. Brenner . . . I filed charges down there
Thursday." Howell said, "Well, why don't you withdraw them charges? ... You
know you can't get nothing out of it .... The Unions got plenty of money and the
best lawyers there is." Lee then asked Howell to give Brenner a statement to the
effect that Turner had stated he would put Lee on as foreman if he would sign the
out-of-work list. Howell refused, stating, "I can't tell you nothing, I've got five kids
to feed " About that time Curry called Howell over to the toolshed.
Howell testified that Lee returned to the job later in the morning and stated he
was ready to go to work. Lee further stated that he had filed charges with the
Board and that he had a man from the Labor Board, Brenner, with him. Howell
then had a "friendly" talk with Lee during which he expressed the opinion that the
men had a strong Local, that Turner was a good business agent, that the men were
being treated fairly, that Lee should "not get involved in this," and suggested that
he "drop the charges." Lee disagreed with Howell's opinion of the Local and said
he "was not going to drop the charges ... that he was going to push ahead with"
them Lee then asked Howell to give a statement to Brenner and Howell remarked
he "didn't think that the man had my best interests at heart" Lee thereupon
reminded Howell that sometime in the past he had signed a statement or release for
Howell in connection with an automobile accident, but Howell declined his request.
Howell admitted that in the course of their conversation he mentioned he had "five
kids to feed," but denied that he told Lee this was his reason for refusing to give a
statement to Brenner Lee then left to talk with one of the men and Howell went to
the toolshed to have lunch.
Upon concluding his interview, Brenner met with Lee and informed him that
Curry had stated Lee had to clear his employment with Howell as he did not want
any trouble with the Union. Curry and Howell were in the toolshed at that time, so
Lee went over and, in the presence of Curry, asked Howell if he could report for
work the next morning. Howell told him, "Well, if you will withdraw them charges
you got, you can come back .... You are going to have this fellow from Labor Board
out here and cause a lot of trouble " Lee said he accompanied Brenner because he
did not know the location of the job. Howell repeated his statement that Lee could
go to work if he withdrew his charges and Lee replied, "I won't withdraw the
charges " Lee then asked Curry, "What about it?" and Curry said, "For my part you
can go to work, but I have to go along with Carl [Howell] I don't want to have
trouble with the Union " Brenner and Lee then left the jobsite
Curry stated that after his interview by Brenner, he called Howell to the toolshed
where he spoke to him regarding the employment of Lee. Howell stated he needed
a welder as his own replacement since he had been made foreman that morning,
and this was the only opening in the millwright crew. Curry remarked Lee was not
a welder and asked if Howell could use him in some place because he did not want
"to get in bad" with either Lee or Turner. Curry concluded by telling Howell, "I
was leaving that entirely up to him whether he put him to work or not, that I backed
my foreman and still do." Lee then came to the toolshed and had a conversation
with Howell and while Curry was present he did not pay much attention to them
since they were both members of the Union. Curry said he heard Howell tell Lee
that he had turned down a job earlier that morning, that he needed a welder as his
own replacement, and that Lee was not a welder. Howell also told Lee he could
not work because he brought his lawyer to the jobsite and "we can't disinterrupt our
organization because you'd [Brenner] be coming out there all the time, and Lige
would be discussing his problem with you all the time." However, on cross-exami-
nation, Curry testified that it was Lee who inquired if his bringing Brenner to the job-
site was the reason for Howell not putting him on the job and Howell replied, "He
wouldn't put him to work." When asked if he heard any conversation concerning
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1387
the filing or withdrawing of charges Curry said Howell told him, "You filed charges
or something" but he could not recall whether Howell stated Lee "would have
to withdraw those charges or not." Lee asked if he was going to work and Howell
told him to wait until he talked with Curry. Howell and Curry then discussed the
matter and Howell "decided that we could not put him to work." Curry thereupon
told Lee that while he was willing to put him to work, "I've got to back my foreman,
and I don't want to get in bad with the Union."
Lee was not employed by Mulberry and Curry has not requested his referral since
that date.
Howell related that Curry called him into the office or toolshed and told him that
he would fully support Howell "in anything you want to do about Lige Lee coming
back to work." Howell asked Curry what he wanted to do about Lee and Curry
replied, "1 am leaving it 100 percent up to you." Howell pointed out that the only
opening in the crew was for a welder to replace himself, a subject they had discussed
earlier, and as they did not need Lee, who was not a welder, Howell decided not to
put him to work. Curry remarked Lee had already refused a job that morning and
the conversation ended. Lee then came to the door of the trailer-office and inquired,
"Well, Carl, what about it?" and Howell replied, "Lige, we can't put you back to
work." Lee asked, "Is it because I brought that National Labor Relations Board
[man] out here?" and Howell stated, "Lige, anything I tell you you will just go tell
somebody else, so rather than have to do a lot of explanation I will just tell you
you can't come to work." Howell denied he ever told Lee that he would have to
withdraw his charges before he could go to work. Lee then left.
Brenner, on cross-examination, developed that he met with Howell at the jobsite
around May 19 and requested him to give a statement, which he refused to do
Brenner then proceeded with a rather lengthy examination of Howell in an effort to
have him agree with Brenner's version of their conversation, especially concerning
Lee's withdrawal of the charges. However, his attempts were futile for Howell, in
substance, reaffirmed his earlier testimony regarding the withdrawal of the charges
and specifically denied making any statement to the effect that Brenner, or anyone
else, should advise Lee to withdraw his charges.
Brenner did not testify at the hearing.
3. The events subsequent to April 27
Lee admitted he did not sign the out-of-work list after he had refused to accept the
Mulberry referral on April 27.
Lee also admitted that he was referred, as millwright, to a job being performed by
Barton Machinery Company, near Fort Meade, and that he worked 3 days, May 18,
19 and 20, when, apparently, the job was completed and he was laid off Lee did
not sign up at the end of this job because under the hiring procedures it was not
necessary to do so since he did not work more than 3 days.
On May 27, about 10.30 in the morning, Lee received a call from the girl at the
hiring hall referring him to a job at Bonnie Mines. Lee said he would have to get
someone to look after his wife and that it would be some 2 hours before he could
report to the job. Apparently the girl spoke with Turner and then told Lee that if
he could not report within an hour, Turner would have to send someone else Lee
stated Turner would have to send someone else, that he could not leave his wife.
On May 29, Lee received another call from the girl at the hiring hall telling him he
had been referred to a job at Cape Kennedy, which was to start June 1. Lee said he
could not accept this job because he could not come home at night and be with his
wife. The girl stated she would have to take his name off the out-of-work list and
Lee complained Turner had no right to do so, at least until he had turned down three
jobs and had been notified by Turner.
Turner said that Lee did not sign up after his refusal to accept a job as millwright
at Tenoroc Mines on April 27. Turner explained that Lee was referred to the Barton
Machinery job after conferring with Attorney Hamilton, and because no men were
available, or registered, on the out-of-work list. Since Lee had been referred to the
job and had not worked more than 3 days, Turner "considered" him as still on the
out-of-work list.
Turner also explained that the Bonnie Mines job was an emergency referral and the
first available man on the list is sent to the job. The failure of a man to accept such
a referral does not result in his name being removed from the out-of-work list.
Turner said he was not in the office when Lee was referred to a job at Cape
Kennedy by Mabel Fernandez, on May 29. However, when he did return he found
a note from Fernandez stating that Lee had refused to accept the job and the reasons
therefor. Lee's name was removed from the list because he had refused the referral,
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in accordance with the terms of the amendment to the agreement or hiring procedures,
dated February 12, 1963, supra. Since that date Lee has failed or refused to sign the
out-of-work list, and he has not been considered for job referrals.
Mabel Fernandez stated that she had been employed by the Respondent Union as a
secretary for some 4 years and her duties at times included the handling of job refer-
rals. In making referrals Fernandez followed hiring hall procedures and referred
men in accordance with their standing on the out-of-work list. Fernandez knew Lee
and said she had never received any instructions from Turner to treat him differently
from any other registrants on the list.
Fernandez testified Lee signed the out-of-work list the morning of April 24, that
later that day she notified him of his referral as millwright to the Tenoroc Mines job,
that Lee insisted that he be sent out as foreman and she refused, stating her instruc-
tions were to refer him as millwright, not as foreman. She further testified that Lee
has not signed the out-of-work list since April 24.
Fernandez had no recollection of Lee's referral to the Barton Machinery job where
he worked May 18, 19, and 20.
Fernandez recalled talking to Lee about the emergency referral to the Bonnie
Mines job and stated that in such cases she goes down the list until she finds a man
available. She also stated that a man does not lose his standing on the list if he is
unable to accept such a referral.
Fernandez testified she called Lee the morning of May 29 and told him he was
being referred to a job at Cape Kennedy. Lee said his wife was ill, that he did not
think he could leave her, but he would call back and let her know whether he could
accept the job. Shortly thereafter, Lee called back and told Fernandez that he could
not take the job because of his wife's condition and that Turner was aware of his
situation. Fernandez said if Lee did not take the job she would have to send someone
else and he would have to come in and sign the out-of-work list. Lee claimed Turner
was telling her what to say and Fernandez told him Turner was not even in the hall.
Fernandez reminded Lee that his name would be removed from the list and asked
if he was coming in to sign up. Lee said he would come in sometime the next week
and "we will see about this." The conversation then ended. Fernandez immediately
prepared a memorandum of the conversation, which was received in evidence at the
hearing. Lee's name was removed from the list and he did not thereafter sign the
same.
Fernandez testified that when a man refused a job referral she automatically
removed his name from the out-of-work list. She also produced a batch of job
referral applications showing that in the period from the latter part of 1963 to date,
39 men had refused to accept jobs and she had removed their names from the out-of-
work list.
Analysis and Concluding Findings
In brief, the issue presented here is whether the Respondent Union caused, or
attempted to cause, Mulberry to refuse to employ Lee on and after April 27 because
he filed unfair labor practices charges against the Union and brought Brenner to the
jobsite and thereafter refused to withdraw the charges and cease bringing Brenner
to the job.
However, the dispute stems from Turner's refusal to refer Lee as foreman from the
Fort Meade job to the Tenoroc Mines job in the period from about March 26 or 27
to April 27, during which time the Union and Mulberry were parties to a hiring hall
agreement. As noted at the outset herein, the complaint does not challenge the
validity of the agreement, nor the Respondent Union's hiring hall procedures. Fur-
ther, the complaint does not allege a discriminatory refusal to refer Lee during the
above period, and there is neither allegation nor contention that the refusal to refer
Lee as foreman constitutes an unfair labor practice.
It is clear from the testimony detailed above that Lee, throughout the period
March 26 to April 27, assumed he was entitled to be referred as foreman and that
Turner's refusal to do so constituted a violation of his statutory rights. Of course,
his assumption was entirely erroneous. Obviously, Lee was advised of his error by
Brenner at their conference the morning of April 27, and as a result of that advice
Lee completely reversed his prior position and decided to accept his referral as a
journeyman, a job he had summarily and finally turned down earlier the same morn-
ing Lee and Brenner thereupon drove to the jobsite to effectuate this new strategy
and when it failed to secure a job for Lee, as set forth below, still a new theory was
injected into the case; namely, that the refusal was based on the fact Lee had filed
unfair labor practices charges and brought Brenner to the jobsite.
While the complaint does not allege an unlawful discriminatory refusal to refer
Lee prior to April 27, nevertheless, the General Counsel argues that the refusal was
"invidiously discriminatory" and that the evidence on this phase of the case affords a
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1389
basis for credibility determinations The General Counsel, in an attempt to sustain
his position that the Respondent Union engaged in proscribed conduct, advances
other arguments covering matters such as Turner's alleged control over the hiring of
employees, which I do not consider as germane to the case
While some of the facts are undisputed the case does turn on the resolution of
credibility issues, although it cannot be said that the case does not present some legal
problems.
Of course, I had the opportunity of closely observing all the witnesses while testify-
ing at the hearing and to evaluate their testimony in the light of their demeanor and
attitude, their willingness to testify in a frank, forthright manner, and the consistency
of their testimony with admitted or established facts. I have followed the above
criteria in resolving the credibility issues and in determining the probative value of
their testimony.
Lee, as a witness, attempted to assume the role of the helpless victim of a plot on
the part of Turner and Howell, with perhaps an assist from Norris and Curry, to
illegally deprive him of employment. I was not at all impressed with this false image
and I was, and am, thoroughly convinced that he testified with the sole objective of
sustaining his charges of unlawful discrimination and to collect some backpay. In
line with that objective, Lee custom tailored his testimony to fit the changing theories
of the case, the exigencies of particular situations, and related his saga in well-
rehearsed fashion. Accordingly, I find him to be an unreliable witness and I do not
accept his testimony, except where it happens to be consistent with that of other
witnesses or established facts.
It is undisputed Curry first requested Turner to transfer Lee (as foreman) and
Veasey to Tenoroc Mines about March 26, and Turner agreed to refer them if they
would sign the out-of-work list. While Curry and Veasy said Lee was present during
the conversation, Lee claimed he was present only momentarily and that he simply
heard Turner say he would not refer them to the job. In this connection Lee asserted
that about 10 days prior thereto he asked Turner if he could transfer to Tenoroc Mines
without signing up and Turner said it was all right since he was working for the same
employer. This assertion is wholly inconsistent with Turner's position, and even
Lee's, and was obviously injected into the picture to bolster his case on that point.'
Around March 30, Curry repeated his request to Turner for Lee and Veasey. and
Turner stated they had not been referred because they had not signed up. Curry
thereupon asked for two millwrights and Lyon and Howell were referred and reported
to Tenoroc Mines about April 2
Shortly after the above date, Norris asked Turner to refer Lee to the job as mill-
wright and Turner agreed, although Lee had not signed the list In accordance with
his promise, Turner referred Lee to Tenoroc, but Lee refused to accept the referral
unless he was sent out as foreman of the job. Turner explained he could not send
him as foreman because Lyons was already acting in that capacity, but this did not
satisfy Lee and he turned down the job.
Nothing further occurred until April 23, when Turner met Curry at the jobsite to
discuss the removal of Lyons. After Turner had agreed to Lyons' dismissal, Curry
inquired about Lee coming on as foreman and Turner informed him Lee, still, had
not signed the list. Turner then asked Curry to put Howell on as foreman, if Lee did
not sign up, and Curry agreed to do so. That evening Curry told Lee that if he would
sign up Turner would send him to the job as foreman.
Lee signed up at the hall the morning of Friday, April 24. The same morning
Turner called Norris to inform him that Lee had signed up and would report for work
Monday, April 27. However, Turner asked that someone else be put on as foreman
because Lee was having "trouble" within the Union and the job would probably get
along better without Lee as foreman. Norris was aware of the fact that Lee had
preferred charges against Turner with the union executive board and agreed not to
use Lee as foreman but as a millwright. Norris informed Curry of the foregoing
decision and they both agreed that Howell should take over as foreman on April 27.
It is undisputed Lee reported on the job the morning of April 27, and when Curry
told him he could go to work as a millwright but not as foreman, Lee rejected the
offer. At that time Curry informed Howell he was taking over as foreman. As Lee
1 At the hearing the General Counsel sought, unsuccessfully, to establish that it was
the custom of the Union to permit a transfer from one job to another job involving the
same employer, without having to sign the out-of-work list Lee gave a rambling account
of his employment on various jobs during 1961, 1962, and 1963, which proved nothing
Moreover, on cross-examination, when asked if there had been any occasion since Au-
gust 1962 that he had been referred to a job without first signing up at the hall, Lee
answered, "I don't recall of none I know of, no " Howell and Turner, among others,
denied there was any such practice or custom.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was leaving the jobsite Howell tried to persuade him to accept employment as a mill-
wright and expressed the opinion the foreman question could be resolved with Curry
and Turner. Indeed, Howell told Lee he could have the foreman's job if it was going
to cause any ill feelings. However, Lee remained adamant, rejected Howell's sugges-
tions and left the jobsite.
Lee then went to the Regional Office and reported the events to Brenner. Accord-
ing to Lee, Brenner advised him he should have accepted employment as a millwright
in order to reduce the amount of backpay he might be entitled to, if any. It is also
reasonable to infer that Brenner advised Lee of the provisions of Section 2(11) of the
Act and, at least, that there was some question as to whether he was entitled as a
matter of right to demand employment as foreman. Brenner and Lee thereupon
decided to visit the jobsite and it is plain the purpose thereof was to rescue Lee from
his untenable and mistaken position.
Of course, at that time Lee's charges, alleging the Union caused or attempted to
cause Mulberry not to hire Lee about March 31, were on file at the Regional Office.
However, the record shows the charges were not served on the Respondent Union
(nor Mulberry) until Tuesday, April 28. Despite this situation and without even con-
tacting the Respondent Union, Brenner went to the jobsite and conducted an investi-
gation of the charges. As a consequence of his efforts on this occasion, and further
investigation, the Respondent Union is now alleged to have caused, or attempted to
cause, Mulberry to refuse employment to Lee on April 27, because he filed charges,
even though the charges had not been served on the Union on that date. Clearly, this
presents a unique procedure Moreover, as no amended charge was ever filed, the
complaint is bottomed on the contents of the original charge which furnish only
shaky support for the allegations therein. However, I make no findings or conclu-
sions in this respect for the validity of the complaint is not an issue in the case.
Further, while I do not say that Brenner's activities at the jobsite on April 27, were
improper, they do demonstrate he believed speedy action was essential if Lee was to
be bailed out of his predicament and to obtain admissions from Howell before he had
an opportunity to consult with officials of the Union.
Upon their arrival at the jobsite, Lee related that he met Curry and, in Brenner's
presence, declared he was ready to go to work and asked Curry if he had called the
hiring hall. Curry answered Lee could go to work as far as he was concerned and
that he had not called the hall. Curry's testimony is at variance with Lee's version of
the meeting in that when Lee announced he was ready to work Curry stated Lee had
turned down the job earlier that morning and when Lee repeated he was ready to
work, Curry said he would have to check with his foreman. I accept Curry's testi-
mony and find that Curry did not state that Lee could work as far as he was con-
cerned, as claimed by Lee. The meeting then ended and Brenner interviewed Curry.
Continuing, Lee said he then met with Howell and when he announced he was
ready to work Howell replied it was all right as far as he knew In answer to Howell's
inquiry concerning the identity of Brenner, Lee said he was a lawyer fiom the Labor
Board, that he had "filed charges down there Thursday." Howell thereupon stated,
"Well, why don't you withdraw them charges? ... You can't get nothing out of it ....
The Unions got plenty of money and the best lawyers there is " Lee then asked him
to give Brenner a statement to the effect that Turner had stated he would refer Lee as
foreman if he signed the list, but Howell refused, stating, "I can't tell you nothing,
I've got five kids to feed."
Howell testified Lee approached him and opened the conversation by telling him
that he filed charges against the Union and that Brenner was with the Labor Board.
Howell then had a friendly talk with Lee during which he expressed the opinion the
men had a strong local, that Turner was a good business agent, that the men were
treated fairly, that Lee should "not get involved in this," and suggested he "drop the
charges." Lee disagreed with Howell's opinion of the Union and said he would not
drop the charges. Lee then asked Howell to give a statement to Brenner but he
declined because Brenner did not have his "best interests at heart "
It strikes me that Lee approached Howell for the purpose of informing him of his
previous conversation with Curry, not to request employment from Howell. Thus,
as found above, Lee had just spoken to Curry regarding his employment on the job,
but Curry gave him no definite answer, stating that he would take up the matter with
Howell. Up to this point Curry, of course, had not had an opportunity to talk with
Howell because he was being interviewed by Brenner. But, irrespective of whether
Lee was or was not applying for employment to Howell, the testimony shows that Lee
initiated the conversation and invited discussion on the fact that he had filed charges
against the Union and brought Brenner to the jobsite. I was favorably impressed
by Howell as a witness, for he testified with candor and frankness and his testimony
was not at all shaken on cross-examination, which was lengthy and at times provoca-
tive For this reason, and my earlier appraisal of Lee, I accept Howell's testimony
MILLWRIGHTS & MACHINERY ERECTORS, LOCAL 1510 1391
bearing on this conversation, as well as other phases of the case. Accordingly, I find
that Howell, as detailed above, did give his views of the Union in the course of his
discussion with Lee and that he did suggest that Lee should drop his charges. How-
ever, Howell did not threaten or warn Lee that his employment was dependent upon
his withdrawal of his charges, nor did he promise Lee employment if he would with-
draw the charges. Nor did Howell threaten Lee with reprisals of any sort if he
failed to follow his suggestion. I, therefore, find Howell's statement was free of any
threats or promises of benefits and was merely an expression of his opinion on a rather
confused situation.
The Curry-Howell discussion on the subject of Lee's employment resulted in the
determination that Lee was not qualified to fill the only available opening in the mill-
wright crew and that Howell, as foreman, would make the decision as to whether Lee
should be employed. Further, the evidence makes it clear that it was Curry who
insisted that Howell make the decision, with the promise that he would fully support
his judgment in the matter. It is equally clear that Howell wanted Curry to make the
determination regarding Lee's employment, but Curry refused to do so. In line with
the responsibility thus placed upon him, Howell decided not to employ Lee because
he was not qualified for the only available job
Lee, having been told by Brenner that he would have to clear employment through
Howell, then came upon the scene and asked Howell about going to work. From
that point on the testimony of the principals is highly conflicting. Lee testified that
Howell twice stated he could not work unless and until he withdrew his charges
which he refused to do, and also made a remark about Lee bringing Brenner to the
job. Lee said the conversation ended with Curry stating Lee could go to work as far
as he was concerned but he was going along with Howell's decision as he did not
want to have any trouble with the Union.
Howell categorically denied that he told Lee he would have to withdraw his charges
before he could go to work. He further testified he simply told Lee, "we can't put
you back to work." Lee thereupon inquired if it was because he had brought Bren-
ner to the job and Howell replied, "anything I tell you you will tell somebody else,
so rather than have to do a lot of explanation I will just tell you you can't come to
work "
Curry said he did not pay too much attention to the Lee-Howell conversation but as
he recalled Howell told Lee he had turned down a job earlier that morning and
the only opening he had was for a welder, and Lee was not a welder. Curry also
stated that while there was some mention of charges in the course of the conversa-
tion he could not recall Howell stating the charges would have to be withdrawn before
Lee could go to work. As detailed above, Curry gave two different accounts on the
subject of Lee's bringing Brenner to the job. In brief, he first stated Howell told Lee
he could not work because in so doing he had interrupted the job. Later, Curry
asserted that when Lee asked if this was reason for not allowing him on the job,
Howell simply stated he could not put him to work. Curry admitted telling Lee that
he was willing to have him on the job but he was backing Howell's decision and he
did not want to get in bad with the Union.
Manifestly, Curry did not want to take a position in the matter which might offend
either Lee or Turner or Howell and his testimony follows that theme. I am con-
vinced from the evidence that Curry could have hired Lee on April 27, had he wanted
to, but he insisted that Howell, as foreman, pass on the question of his employment.
I do not consider Curry's testimony as decisive of the credibility issue, but it does
support Howell's testimony regarding his conversation with Lee and reason for his
refusal to hire him. Certainly, it cannot be said that Curry corroborated Lee's testi-
mony that he was denied employment because he refused to withdraw his charges or
because he brought Brenner to the jobsite.
As might be expected, Lee's testimony, if accepted, would prove an ironclad case
against the Respondent Union. However, Howell not only denied Lee's version but
gave an entirely different account of the cause for his refusal to employ Lee. For
the reasons previously stated, I reject Lee's testimony and on the basis of Howell's
credible testimony I find that he declined to hire Lee because Lee was not qualified
to fill the only available vacancy, not because he filed charges or refused to withdraw
them, or because he brought Brenner to the jobsite.
The allegation that the Respondent Union since April 27, has conditioned Lee's
future employment upon withdrawal of his charges, the General Counsel contends,
stems from a continuation of the Respondent Union's unlawful conduct. In view of
my findings, the allegation cannot be sustained on those grounds. Again, there is no
affirmative evidence that Mulberry thereafter hired any millwrights and Curry spe-
cifically testified he has not requested Lee's employment since that date. Moreover,
the undisputed testimony proves that Lee was actually referred to three different jobs
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent Union subsequent to April 27. His last referral was made on
May 29, when he was notified to report to a job at Cape Kennedy on June 1, which
Lee refused to accept because he could not remain away from home. His name was
thereupon removed from the list in accordance with the terms of the agreement and
hiring hall procedures. Since then Lee has failed and refused to sign the out-of-work
list and he has not been considered for job referrals.
As I have already found, the record demonstrates that the present dispute arose
as a consequence of Lee's stubborn refusal to comply with nondiscriminatory and
reasonable hiring procedures and his adamant insistence upon being referred to
Tenoroc Mines as foreman. The refusal of the Respondent Union to refer Lee in
these circumstances was not violative of the Act.2 As I also found Lee was refused
employment on and after April 27, for valid reasons, I further find and conclude
that the Respondent Union did not cause, or attempt to cause, Mulberry to refuse
employment in violation of Section 8(b) (1) (A) and (2) as alleged in the
complaint.
The remaining issue to be resolved is whether the Respondent Union, through
Lyons, threatened Lee with loss of his membership in the Local if he sought to
vindicate his rights under the Act. This alleged violation is bottomed on statements
made by Lyons at the meeting of the union executive board about April 9 or 10,
which was called for the purpose of hearing Lee's charges that Turner has refused
to refer him as foreman, although requested by the superintendent, and his claim
for restitution for wages lost as a result thereof.
On the composite testimony of the witnesses who testified concerning the meeting,
I find Turner opened the same by referring to the nature of the charges, that Turner
and Lee outlined their positions in respect thereto, that the board members and
principals discussed the Union's hiring procedures, including the requirement of
signing the out-of-work list, that the board considered the charges and passed a
motion sustaining Turner's position, and instructed Turner to follow the Local's
procedures for job referrals. I also find on the basis of Johnson's testimony, as
corroborated by other witnesses, that he did not say he would not believe Curry on
oath, a statement attributed to him by Lee when he produced or referred to Curry's
sworn statement that his request for Lee as foreman had been refused.
With respect to the threats, Lee stated that during the discussion of charges, Lyons
asked what he was going to do and Lee responded, "I don't know, but I will do
something." Lyons then declared, "If you take this to the Labor Board ... you
could have your book taken from you or [be] fined." Lee asked if he was threaten-
ing him and Lyons said, "No, ... but I know of a person who went and took a case
to the Labor Board and he got about two thousand dollars out of it. . . . He hasn't
got to work yet; if he has it's very little." Lee understood this remark as referring
to the old Moon-Hyde cases At that point Turner declared, "He's going to take
me to the Labor Board. I don't give a damn if he does."
Lyons testified that after Lee had been informed of the board's decision he advised
him of his rights within the Union and Lee, who was very much disturbed, said he
"was going to do something about it." Lyons stated "he shouldn't be taking outside
action against the local union, that it had been done in the past and it resulted in
hardship for the men involved." Lyons also pointed out that it was in Lee's best
interest to work through the Local and "if he did not abide by the rules and reg-
ulations of the local as well as the United Brotherhood, that he could lose his book."
Lyons said that in the course of their talk about "not going outside the local union,"
he "may have possibly included the NLRB."
From the above testimony I find Lyons, in substance, told Lee that if he took his
case to the Labor Board he could lose his union book or could be fined. I am also
satisfied that Lyons made some reference to the Moon-Hyde charges and remarked
this action had resulted "in hardship" for them. I attach little importance to this
portion of Lyons' remarks for it is couched in vague and broad language from which
conflicting and farfetched inferences may be inferred. The Respondent Union con-
tends that in the absence of any evidence of job discrimination in connection with
the statements, they cannot be considered as a threat within the meaning of Section
8(b)(1)(A) of the Act. On the other hand, the General Counsel argues that the
threat of loss of future employment is no less coercive than if such unlawful with-
2Loeal Union No. 18, International Union of Operating Engineers, AFL-CIO, et at
(Ohio Pipe Line Construction Company), 144 NLRB 1365 ; Plasterers & Cement Masons
Local Union 394, Operative Plasterers & Cement Masons International Association (Prime
Construction Co , Inc ), 145 NLRB 188 See also Local Union No 337, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO (Townsend and Bottum, Inc.), 147 NLRB 929.
HUDSON OIL COMPANY OF MO., INC. 1393
holding of employment was already in effect and, seemingly, the same rationale
applies to the threat of possible disciplinary action. The General Counsel's position
is predicated upon Board decisions holding that the imposition of a fine by a union
against its members because they filed unfair labor practice charges against it (which
were withdrawn) constituted coercion and restraint in violation of Section 8(b)(1)
(A) 3 and that a union's unlawful withholding of employment from its members
for the same reason was violative of Section 8(b) (1) (A) and (2) of the Act .4 The
foregoing cases fully support the propositions for which they are cited. However,
the cases are readily distinguishable for they are based on factual situations entirely
different from those in the present case. Here, it is undisputed the Respondent Union
did not fine Lee, or take away his book, or subject him to any disciplinary action
whatever. Nor did the Respondent Union, as I have found, unlawfully cause, or
attempt to cause, Mulberry to deny employment to Lee. Further, Lyons' statements
were barren of any express threat that Lee would be fined or lose his book or be
illegally denied employment if he took his case to the Labor Board, only the possi-
bility of such action. Moreover, Turner's statement, as related by Lee, that he did
not give "a damn" if he took his case to the Board would seem to negate any implied
threat in Lyons' remarks. The authorities cited, therefore, do not support the Gen-
eral Counsel's theory of the coercive character of the statements. In my opinion,
the bare statements of Lyons, and nothing more, do not constitute restraint and
coercion within the meaning of Section 8 (b) (1) (A) of the Act. But, assuming the
contrary, I would not recommend the issuance of an order for the reasons that the
statements are isolated and in the unusual and unique circumstances of this case
it would not effectuate the public policies of the Act.3
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Mulberry Construction & Welding Co. is an employer and engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union is a labor organization as defined in Section 2(5) of
the Act, and Turner, Lyons, and Howell are agents within the meaning of Section
2(13) thereof.
3. The Respondent Union has not engaged in unfair labor practices within the
meaning of Section 8(b)(1) (A) and (2) of the Act, as alleged in the complaint as
amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
ment that the complaint as amended be dismissed in its entirety.
3Local 138, International Union of Operating Engineers, AFL-CIO (Charles S. Skure),
148 NLRB 679; H. B. Roberts, Business Manager of Local 925, International Union of
Operating Engineers, et al. (Wellman-Lord Engineering, Inc.), 148 NLRB 674.
4 Hod Carriers', Building d General Laborers' Union of America, Local No. 652, AFL-
CIO (Earl C. Worley), 147 NLRB 380; International Association of Heat and Frost In-
sulators and Asbestos Workers, Local #84, AFL-CIO (The Edward R. Hart Company),
146 NLRB 660.
5 The Crossett Company, 140 NLRB 667.
Hudson Oil Company of Mo ., Inc. and General Drivers & Helpers
Local Union No. 95, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer-
ica. Cases Nos. 30-CA-38 (formerly 13-CA-6157) and 30-CA-61
(formerly 13-CA-6398). June 9,1965
DECISION AND ORDER
On January 22,1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled case, finding that the Respondent had
152 NLRB No. 141.
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