Penzel Construction Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 544 (N.L.R.B. 1970)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penzel Construction Company , Inc. and H . Clinton
Johnson.
Carpenters Local 1770 , affiliated with United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and H . Clinton Johnson. Cases
14-CA-5543, and 14-CB-1955
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND BROWN
On May 4, 1970, Trial Examiner William J. Brown
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent Penzel Construction Company, Inc.
(herein called Penzel) filed a motion to reopen this
proceeding for further hearing and, in the alternative,
should the motion be denied, exceptions to the Trial
Examiner's Decision and supporting brief ' The Gener-
al Counsel filed a memorandum in opposition to
the motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts
the findings,' conclusions, and recommendations of
the Trial Examiner to the extent consistent herewith.
1. The Trial Examiner found, and we agree, that
Respondent Penzel violated Section 8(a)(1) of the
Act by superintendent Naeger's statement to Johnson,
the Charging Party herein, on October 8, 1969,' that
Johnson would never again work for Penzel because
he had reported to the Union that Penzel was using
laborers to perform carpentry work. This finding
I For the reasons stated in the text, infra, the motion is denied
2 The Respondent Pence) has escepted to certain of the Trial Examiner's
credibihts resolutions After a carelul rei ieu of the reLord sic conclude that
the Trial Examiners credihilits findings are not contray to a clear
preponderance of all the reles,mt ciidence Accordmh we find no basis for
disturbine those lindim_s Standard Dri It all Produus Inc 91 N LR B 544
enfd 188 F 2d 362 (C A 3)
' Unless otherwise stated, all dates are in 1969
is based upon Johnson's credited testimony as against
that of Naeger The fact that Johnson's report was
later found to be without substance by the Union's
business representative does not alter the unlawful
nature of Naeger's remark, or justify reversing the
Trial Examiner's credibility resolution, as urged by
our dissenting colleague.
2. The Trial Examiner also found that Penzel violat-
ed Section 8(a)(3) and (1) of the Act by refusing,
on and after October 8, to reemploy Johnson because
he had reported Penzel to the Union. While we
agree that Respondent, through Naeger, had decided
on October 8 not to hire Johnson because Johnson
had reported Penzel to the Union, we find, unlike
the Trial Examiner, that for the purpose of computing
backpay the unlawful discrimination against Johnson
did not begin until October 24, the date on which
Johnson's doctor certified Johnson as physically able
to return to regular work.' It is irrelevant that Johnson
did not thereafter reapply to Penzel for work in
view of Naeger's broad statement on October 8 that
Johnson would never again work for Penzel. In these
circumstances it would have been futile for Johnson
to make further job applications to Penzel.'
3. The Trial Examiner found that Respondents
Penzel and the Union violated Section 8(a)(3) and
(1), and Section 8(b)(2) and (1)(A) of the Act, respec-
tively, by "blacklisting" Johnson from employment
with Penzel on and after October 23, and that the
Union additionally violated Section 8(b)(2) by discrim-
inatorily refusing, on and after November 11, to
refer Johnson to available jobs with Penzel. The record
as a whole, in our opinion, does not support these
findings of violations by the Union.' There is no
evidence that on October 23, or on any other date,
the Union acted in any way to cause or attempt
to cause Penzel to refuse to hire Johnson or that
Penzel and the Union acted in concert or communicat-
ed with each other with respect to denial to Johnson
' The Triaf Examiner ' s finding that Johnson was advised by his doctor
on September 26 that he could return to work is not supported by
substantial evidence Although Johnson and Dr Fuller testified that
on September 26 they discussed the possibility of Johnson returning
to work and that Fuller said he could try doing some work , this does
not establish that he was then physically capable of resuming work
To the contrary , the preponderance of all the relevant evidence , including
Dr Fuller's written medical report and the testimony of Johnson, Dr
Fuller, Naeger , and Mr Schlichter (the Workmen ' s Compensation claims
agent), establishes , and we find , that Johnson was not released from
his doctor to return to work until October 24 Moreover , on the basis
of Dr Fuller's medical report , Johnson continued to receive temporary
total disability payments under Penzel 's Workmen's Compensation insur-
ance through October 23
' American Compress Warehouse Dss'irion of Frost-Whited (onipani
Inc. 144NLRB433,439
' Although the Respondent Union did not file separate exceptions
to the Trial Examiner's Sec 8 (b)(2) and (1)(A) findings, these findings
were placed in issue by the exceptions filed by Respondent Penzel
Kramer Brothers Freight Lines , Inc, 130 NLRB 36, in 4 at 40
185 NLRB No. 32
PENZEL CONSTRUCTION, CO 545
of employment with Penzel. Nor does the record
establish that the Union unlawfully refused to refer
Johnson to available jobs with Penzel on or after
November 10.' Johnson testified that on November
10 he asked Thomas, the Union's business representa-
tive, why men below him on the out-of-work list
were being referred to a Penzel highway project while
he was still not working. Thomas replied that he
preferred not to send Johnson to Penzel because,
according to Johnson, "it would just cause trouble,
I would get to work a day or two and probably
get fired." Johnson's inquiry as to why men below
him on the out-of-work list were being referred, does
not establish the truth of that statement, and no
evidence was offered that his name was in fact skipped
over by Thomas in making referrals.' More significant,
however, is Johnson's further testimony that when
he again asked Thomas for a referral to Penzel on
November 14, Thomas offered to send him there
if Johnson really wanted to go. Thomas told Johnson,
however, that another contractor would need carpen-
ters within a few days and promised to refer him
to that job. Johnson left, telling Thomas that he
would think it over and did not repeat his request
for referral to Penzel. Johnson's testimony in this
regard was corroborated by two witnesses who were
at the union office at the time and overheard this
conversation. This testimony, on which the Trial
Examiner relied, on its face contradicts his finding
of an unlawful refusal to refer Johnson. Thereafter,
on November 21, Thomas referred Johnson to the
previously promised job.
Based on the foregoing evidence, we are unable
to find that the Union caused or attempted to cause
Penzel discriminatorily to refuse to hire Johnson or
that the Union refused to refer Johnson to jobs with
Penzel in violation of Section 8(b)(2) and (1)(A) of
the Act or that Penzel and the Union acted in concert
in any way to "blacklist" him. Accordingly, we shall
dismiss the complaint as to these allegations.
4. Finally, the Trial Examiner found, and we agree
for the reasons stated by him, that Respondent Union
violated Section 8(b)(1)(A) of the Act by president
' The Trial Examiner's reference to November 11 as the date on
which the events occurred is erroneous For, although Johnson first
testified that he spoke to Thomas at the Union's office on November
11, he later changed that date to November 10 when , on cross-examination,
it was pointed out that the Union office was closed on November 11
for Veteran's Day observances
The record fails to disclose whether or not there was an exclusive
hiring hall agreement , arrangement , or understanding between Penzel
and the Union , absent which the manner of referral by unions has
not been regulated by the law or Board decisions thereunder Ohio
Valley Carpenters' District Council, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (Vencil Pruitt) 131 NLRB 1130, 1137,
cf Local 190, Labors' International Union of North America, AFL-
CIO (Basic Construction Co 1, 167 NLRB 561, 569-570
Boos' statement to Johnson at the January 2 union
meeting that he could bring charges against Johnson
for having filed the instant unfair labor practice
charges against the Union.
5. As noted, supra, Respondent filed a motion
to reopen this proceeding to take newly discovered
evidence. In support of its motion, Respondent con-
tends that, after the hearing herein closed, it learned
for the first time that Johnson is now, and for a
long time has been afflicted with blackout spells,
"which has probably affected his memory and his
mind, and has probably caused some type of mental
condition believed to be associated with paronoia."
Respondent contends that this condition probably
affected Johnson's veracity as a witness and may
affect his ability to work. In opposing this motion,
the General Counsel argues that the proposed new
evidence, if adduced and credited, would not require
a different result herein and, therefore, is irrelevant
and immaterial to the issue of whether Respondent
violated Section 8(a)(3) of the Act. The Respondent's
motion is hereby denied, as the proposed evidence
could not affect the conclusion that Johnson was
denied employment in violation of Section 8(a)(3).
To the extent Johnson's physical conditon may be
relevant to his ability to perform the duties of a
carpenter in Penzel's construction business and thus
may affect Respondent's obligation to offer Johnson
immediate employment, it may be raised and consid-
ered in the compliance stage of this proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. The Respondent Penzel Construction Company,
Inc., Jackson, Missouri, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Telling employees or applicants for employment
that they will not be considered for employment
because they report to the Union that Penzel is misallo-
cating work between different crafts.
(b) Refusing to employ employees or applicants
for employment in reprisal for reporting to the Union
concerning Penzel's allocation work as between crafts.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act-
(a) Offer Johnson immediate employment on a
project comparable to those being operated on or
after October 24, 1969, displacing, if necessary,
employees hired after that date.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make Johnson whole for any loss of earnings
suffered by him as a consequence of Penzel's discrimi-
natory refusal on and after October 24 to consider
him for employment.
(c) Post at its office in Jackson, Missouri, and
on any bulletin boards maintained by Penzel at its
projects copies of the notice attached and marked
"Appendix A."9 Copies of said notice, on forms sup-
plied by the Board's Regional Office for Region 14
shall, after being duly signed by an authorized repre-
sentative of the Company, be posted immediately
upon receipt thereof, and maintained thereafter for
60 consecutive days. Reasonable steps shall be taken
by Penzel to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14,
in writing within 10 days from receipt of this Decision
what steps have been taken to comply with the terms
hereof.
B. The Respondent Carpenters Local 1770, affiliated
with United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Cape Girardeau, Missouri,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening to file union disciplinary charges
against Johnson or any other member in reprisal
for filing charges under the Act.
(b) In any like or related manner restraining or
coercing its members in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Post at its office in Cape Girardeau and on
any bulletin boards maintained by it on union projects
copies of the attached notice marked "Appendix
B."'° Copies of said notice on forms furnished by
the Regional Director for Region 14 shall, after being
duly signed by its representative, be posted immediate-
ly on receipt thereof, and maintained thereafter for
60 consecutive days. Reasonable steps shall be taken
by the Union to ensure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 14,
in writing within 10 days from receipt of this Decision
what steps have been taken to comply with the terms
hereof.
° In the event this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to
read "Posted pursuant to a judgment of the United States Court of
Appeals enforcing an Order of the National Labor Relations Board "
'° In the event this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to
read "Posted pursuant to a judgment of the United States Court of
Appeals enforcing an Order of the National Labor Relations Board "
CHAIRMAN MILLER, dissenting in part:
I agree that the Respondent Union violated Section
8(b)(1)(A) by President Boos' threat to bring charges
against Johnson for filing the unfair labor practice
charge herein against the Union; and that Johnson
was not blacklisted for employment by Penzel or
unlawfully refused referral to Penzel.
I do not agree, however, that Penzel refused to
employ Johnson because he reported Penzel to the
Union. This finding is based entirely on Johnson's
testimony that Superintendent Naeger told him he
could forget about ever working for Penzel again
because he had "sicked" the Union on Penzel, which
Naeger flatly denied. In my view, Johnson's testimony
is contrary to a clear preponderance of all the relevant
evidence, and I am unwilling to credit it over Naeger's
denial." Thus, although Johnson called Union Agent
Thomas to the Penzel jobsite, the record establishes
that Thomas concluded nothing was amiss at the
jobsite. The Union was not, therefore, "sicked" on
Penzel. In fact, Naeger testified that he was not
even aware of the incident, and there is no evidence
that he was. On the contrary, Thomas told Johnson
he had spoken only to the labor foreman and had
not mentioned Johnson's name while he was there.
Although the record indicates that Naeger "had no
use" for Johnson, except for this testimony by John-
son, there is nothing to indicate that Naeger was
motivated by anitunion considerations in his failure
to reemploy Johnson. Indeed, the record shows that
Naeger was at one time a union business agent,
that representatives of various unions with which
Penzel deals frequently visit its jobsites, and that
Thomas visits them every 2 weeks or so, half the
time with complaints.
As substantial evidence on the record considered
as a whole fails to establish that Naeger made the
remark attributed to him by Johnson, I would find
that the General Counsel failed to prove that Penzel's
failure to employ Johnson was based on union consid-
erations, and I would therefore dismiss the complaint
entirely as to Respondent Penzel.
" In view of my ultimate disposition of the 8 (a)(3) allegation as
to Penzel, I find it unnecessary to pass upon Penzel's motion to reopen
the record so that it might introduce newly-discovered evidence of a
medical condition that would , arguably, have been relevant in an evaluation
of Johnson 's memory and mental condition for credibility purposes
APPENDIX ' A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees or applicants
for employment that they will not be considered
PENZEL CONSTRUCTION, CO
for employment because they report to the Union
Penzel's misallocation of work between different
crafts.
WE WILL NOT refuse to hire employees or
applicants for employment in reprisal for report-
ing to the labor organization which represents
them that Penzel is improperly allocating work
between different crafts.
WE WILL NOT in any manner ffiterfere with,
restrain, or coerce employees in their exercise
of rights under the National Labor Relations
Act, as amended.
WE WILL offer Clinton Johnson immediate
employment on a company project on which
carpenters are employed and make him whole
for wages lost because of our refusal to consider
him for employment since October 24, 1969.
PENZEL CONSTRUCTION
COMPANY, INC.
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , 1040 Boatmen 's Bank Building , 314 North
Broadway , St. Louis, Missouri 63102 , Telephone 314-
622-4167.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
WE WILL NOT threaten any member with
union disciplinary action in reprisal for their
filing charges under the National Labor Relations
Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce our members in the exercise
of their rights under the National Labor Relations
Act, as amended.
CARPENTERS LOCAL11770,
AFFILIATED WITH
UNITED BROTHERHOOD
OF CARPENTERS AND
JOINERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
547
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone 314-
622-4167.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This consolidated
proceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended, hereinafter referred to as the Act,
came to be heard at Jackson, Missouri, on February 11,
1970. The original charges of unfair labor practices had
been filed October 24, 1969,' in Case 14-CA-5343 and
on December 16 in Case 14-CB-1955 by the above-indicated
Charging Party, hereinafter referred to as Johnson. The
consolidated complaint herein was issued December 30
by the General Counsel of the National Labor Relations
Board acting through the Board's Regional Director for
Region 14. It alleged, in addition to jurisdictional matter,
that the above-indicated Respondents, hereinafter referred
to as the Company and the Union, engaged in unfair
labor practices defined in Section 8(a)(3) and (1) and 8(b)(2)
and (1)(A) of the Act. Respondent's answers admit the
jurisdictional allegations of the complaint, deny the commis-
sion of unfair labor practices.
At the hearing the parties appeared and participated,
as noted above, with full opportunity to present evidence
and argument on the issues. Subsequent to the close of
the hearing, briefs were received from the General Counsel,
the Company and the Union which have been fully consid-
ered. On the entire record herein and on the basis of
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings and evidence establish and I find that
the Company is a corporation organized under the laws
of the State of Missouri with its principal office and place
of business in Jackson, Missouri; it is engaged in the con-
struction of commercial buildings, roads, and highways
and is a member of Associated General Contractors and
the Southeast Missouri Contractors' Association, which
associations engage in collective bargaining on behalf of
their members who annually purchase and receive at their
II Dates hereinafter , unless otherwise noted, relate to the calendar year
1969
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places of business in Missouri goods and materials valued
in excess of $50,000 and shipped to such places of business
in Missouri directly from points outside the State of Mis-
souri. I find, as the parties concede, that the Company
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The pleadings and
evidence also establish the supervisory status of Company
President Carl Penzel and Building Superintendent Fred
Naeger
Ii. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish and I find that
the Union is a labor organization within the purview of
Section 2(5) of the Act and that Business Representative
Leonard Thomas and President Raymond Boos are its
agents within the meaning of Section 2(13) of the Act.
III THE UNFAIR LABOR PRACTICES
On May 5, Johnson, who had peddled fire extinguishers
for some 15 years and whose only experience at the carpenter
trade consisted of building some boat molds, applied for
union membership and was immediately dispatched to work'
on a Kroger job.' On July 7, Johnson went to the company
office and applied to Carl Penzel for work, Penzel referred
him to Naeger who sent him to work on several jobs
under the supervision of Ed Theile.' On August 15, while
working for the Company on a project at Cape Girardeau,
Johnson fell and dislocated a shoulder He consulted Dr.
Marguerite Fuller, a practicing osteopath who had treated
Johnson as a patient since he was 10 years old. Dr. Fuller
had Johnson hospitalized for 2 days, August 16 and 17,
and on September 26 advised him that he was able to
return to work' After his September 26 discussion with
Dr. Fuller, Johnson proceeded directly to the Company's
IGA job and informed Naeger of his availability for work.
Naeger directed him to report for work at that job on
the following Monday unless otherwise instructed; later
that same day Neager telephoned Johnson at home and
informed him that he would not be needed on the IGA
job and that there were no immediate alternative prospects
for work. Johnson again inquired of Naeger as to work
opportunities on September 29 and October 1 and specifical-
ly asked about returning to his job on the project where
he had been injured, but Naeger replied that it would
be unfair to displace his replacement and that work was
otherwise scarce. In these talks between Johnson and Naeger,
Naeger, according to Johnson, praised his work and prom-
ised him a good recommendation to another employer.
Naeger, however, testified that various company foremen
complained of Johnson's ignorance of the carpenter craft
Johnson was formally initiated into the Union about July 11
Although Naeger testified that Johnson , at their first meeting, claimed
to have experience at the carpenter trade in the employ of a large
contractor, Crites & Silar, I credit Johnson's testimony that his only
claim of experience was in the boat mold building above referred to
Theile did not testify
' Dr Fuller's Workmen's Compensation Report indicates that Johnson
would be able to return to regular work on October 24 but I credit
her testimony to the effect that after an X-ray examination on September
26 she told him he could try returning to work
and of his relatively frequent rest periods The foremen
did not testify and I do not credit Naeger's uncorroborated
account in this regard, particularly in view of Naeger's
testimony that in the course of their talk about return
to work he informed Johnson to report on Monday at
the IGA job, unless otherwise instructed over the weekend.
On Friday, October 3, Johnson attended a union meeting
at the union hall in Cape Girardeau in the course of
which a member, Schubert, reported to the meeting on
the Company's use of laborers to put up forms on the
IGA job in Jackson. Some members present opined that
Johnson should bring charges against union members who
worked alongside laborers, but Johnson reported to the
meeting that the Company, on its IGA job, used carpenters
and laborers somewhat interchangeably in an effort to spread
available work for the existing work force. On the following
Monday, Johnson drove by the IGA job and observed
four laborers taking down forms and no carpenters on
the job. He telephoned this information to Thomas who
said he would be down to look the job over Thomas
later checked the work and concluded that the work involved
was properly assigned to the laborers.
On the morning of October 8, Johnson, by chance, encoun-
tered Naeger in front of the_ Sunny Hill Restaurant in
Cape Girardeau and sought to talk with him. Naeger,
according to Johnson's account which I credit, refused
to talk to him and said that he was mad and that Johnson
could forget about ever working for the Company again,
and that he would personally see to that. When Johnson
asked what he had done, Naeger replied that he had "sicked"
the union business agent on the company Although Naeger
denied any reference to "sicking" the business agent on
the Company or any threat against Johnson's employment,
I credit Johnson's account of the episode. After the encoun-
ter Johnson telephoned Thomas who informed him that
on his visit to the IGA job he talked only with the labor
foreman and made no mention of Johnson's name. A few
hours later Johnson went to the company office and sought
to talk with Naeger, but the latter refused.
On October 23, through the good offices of Company
President Penzel, Johnson, Naeger, and Prezel met at the
company office. Johnson attempted to explain his minimal
role in the union meeting of October 6, but Naeger said
that he had no interest in the union meeting and no
use for Johnson Penzel said that there might be work
for Johnson on a highway or bridge crew but that there
was none at that time. Johnson had no further talks with
Naeger or Penzel Instead he applied two or three mornings
each week at the union office where he asked Thomas
for referral to work and finally on November 11 asked
Thomas why men below him on the out-of-work list were
being sent to a Company highway project. Thomas replied
that a referral to a Company job would only cause trouble
since he would probably be fired after a day or two of
work. Thomas later explained that it was his own decision,
not based on company request, that Johnson not be referred
to a Company job On November 14, Thomas offered
referral to another contractor, Mac Menenne Construction,
and on November 24, Johnson commenced work on that
project where he has apparently been employed until the
date of the hearing in the present case.
PENZEL CONSTRUCTION, CO 549
As noted above, the charge in Case 14-CB-1955 was
filed December 16, alleging an unlawful refusal on the
part of the Union to refer Johnson to the Company in
deference to the Company's unlawful refusal to employ
him. By amendment to the complaint at the hearing, it
is also alleged that President Boos, an agent of the Union,
threatened to file intraunion charges against Johnson because
of the filing by him of the charges in Case 14-CB-1955
With respect to the amendment to the complaint relating
to the threat by Boos to file intraunion charges, Johnson
testified that he and some 40 members attended the January
2, 1970, meeting at which President Boos presided and
Business Agent Thomas was in attendance. A member
raised a question concerning the unfair labor practice charges
against the Union and the complaint was read to the
meeting. At the end of the reading, according to Johnson,
Boos asked Johnson if he would pay the union costs of
defending the case if the complaint were dismissed and
Johnson stated that he would not. Boos, according to
Johnson, said that he could file charges within the Union
for causing dissension. Schubert, a former union president,
whose second term as union president was nullified by
court order, essentially corroborated Johnson's account
Although Schubert appears on the record to have reason
to bear hostility toward Boos, I credit his testimony before
me, and I find, notwithstanding Boos' and Thomas' denials
that on the occasion of the January 2, 1970 meeting Boos
threatened Johnson with the statement that he could file
intraunion charges against Johnson for causing legal expense
to the Union in connection with the defense of the unfair
labor practice charges
As outlined above, I find that on October 8, Naeger
angrily accused Johnson of "sicking" the Union Business
Agent on him because of the Company's assignment of
carpenter work to laborers and threatened Johnson that
he would see to it that he had no further employment
with the Company
The evidence clearly indicates that subsequent to October
23, Johnson has had no employment with the Company
I conclude that this is due both to Naeger's refusal to
permit him to work and to the Union's disinclination to
refer him to the Company which has had job opportunities
which Johnson could have filled during this period. The
Company and the Union are shown to have engaged in
a blacklisting of Johnson from company employment and
I find that their activities in this regard constituted unfair
labor practices within the purview of Section 8(a)(3) and
(1) and 8(b)(2) of the Act. In addition, Boos' statement
at the union meeting of January 2 respecting the filing
of union charges against Johnson in reprisal for the latter's
filing of charges under the Act constituted restraint and
coercion of employees within the scope of Section 8(b)(1)(A)
of the Act.
iV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
labor practices, occurring in connection with the business
operations of the Company set forth in section 1, Above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several states and tend
to lead to disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect
that the Company and the Union have engaged in certain
unfair labor practices affecting commerce it will be recom-
mended that they be required to cease and desist therefrom
and, in view of the findings of discriminatory refusal to
hire and refer on the parts of the Company and the Union
respectively, from any other unfair labor practices. N.L.R.B.
v. Entwistle Mfg. Co., 120 F 2d 532 The remedial relief
policies outlined in F W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716,
shall be applicable
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following
CONCLUSIONS OF LAW
1 The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By refusing from and after October 8, to employ
Johnson because he had reported to the Union concerning
the Company's substitution of laborers for carpenters on
a company project, the Company has engaged in unfair
labor practices defined in Section 8(a)(3) and (1) of the
Act.
4. By advising Johnson on October 8, that he would
have no more employment with the Company because
he had reported to the Union concerning the company
allocation of work as between carpenters and laborers,
the Company has engaged in unfair labor practices defined
in Section 8(a)(1) of the Act
5 By refusing from and after November 11, to refer
Johnson to employment with the Company on the basis
of Johnson's conduct in protesting the Company's allocation
of work as between carpenters and laborers, the Union
has engaged in unfair labor practices defined in section
8(b)(2) of the Act
6. By threatening to file intraunion charges against John-
son because the latter filed charges of unfair labor practices
under the Act, the Union has engaged in unfair labor
practices defined in Section 8(b)(1)(A) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
The activities of the Company and the Union set forth
in section III, above, and there found to constitute unfair [Recommended Order omitted from publication.]