Porter-Dewitte Construction Co., Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1961

134 N.L.R.B. 963 (N.L.R.B. 1961)

PORTER -DE WITTE CONSTRUCTION CO., INC. 963
Porter-DeWitte Construction Co., Inc. and George Gist
R. B. Potashnick and Ernest Prince
Local 318, International Union of Operating Engineers, AFL-
CIO and R. B. Potashnick, Contractor , Thomas L. Aldridge,
Jr., Porter-DeWitte Construction Co., Inc., George Gist, and
Ernest Prince
Robert V. Jones, Claude Nolan , Leroy Lawrence , and Owen R.
Knupp , as an Employee -Committee and as Agents Thereof
(R. B. Potashnick ) and Ernest Prince
Local 318, International Union of Operating Engineers, AFL-
CIO and Porter-DeWitte Construction Co., Inc. Cases Nos.
14-CA-2204, 14-CA-2235,- 14-CB-805, 14-CB-806, 14-CB-808,
14-CB-812,14-CB-816,14-CB-823, and 14-CC-142. December 5,
1961
DECISION AND ORDER
On June 13, 1960, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents, Porter-DeWitte Construction Co., Inc., herein called
Porter; R. B. Potashnick, herein called Potashnick; Local 318, Inter-
national Union of Operating Engineers, AFL-CIO, herein called
Local 318; and Robert V. Jones, Claude Nolan, Leroy Lawrence, and
Owen R. Knupp, as an Employee-Committee and as agents thereof,
herein called the Committee, 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
Intermediate Report attached hereto. He also found that as Potash-
nick was the principal stockholder of, and controlled, Potashnick
Construction, Inc., herein called PCI, and that Potashnick, PCI, and
"other associated companies may individually and jointly be referred
to as Potashnick and be considered herein as Respondent Employer
Potashnick." Thereafter, exceptions were filed by Respondents Por-
ter, Potashnick, Local 318, and the Committee. Supporting briefs
were filed by Respondents Porter, Potashnick, and Local 318.1
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
1 Local 318 and the Committee have requested oral argument . These requests are hereby
denied because the record , the exceptions , and the briefs adequately present the issues and
the positions of the parties
134 NLRB No. 90.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed 2 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent that they are con-
sistent with this Decision and Order.
1. Potashnick excepts to the Trial Examiner's finding that PCI
and "other associated companies" may be "considered herein as Re-
spondent Employer Potashnick." Potashnick notes that the com-
plaint in Case No. 14-CA-2235 did not allege or name any party
respondent other than Potashnick, that this complaint was not amended
to add PCI and "associated companies" as additional respondents, and
that only the complaint against Local 318 in consolidated Cases Nos.
14-CB-805, 14-CB-806, 14-CB-808, 14-CB-812, and 14-CB-816 was
amended at the hearing, which amendment only involved the adding
of PCI as an employer with whom Local 318 allegedly maintained and
enforced an unlawful hiring practice or arrangement. As it is clear
that the General Counsel did not proceed against PCI or any "associ-
ated companies," we find merit in this exception, and accordingly, will
limit our findings to the Respondents named in the complaints.
2. We agree with the Trial Examiner that Local 318 maintained
and enforced unlawful hiring practices or arrangements with Porter,
Potashnick, and PCI which discriminated against nonmembers of
Local 318. We also agree with the Trial Examiner that Local 318
on various occasions, as set forth, infra,,attempted to cause Porter and
Potashnick to discriminate against their employees. However, our
finding that the practices or arrangements, the attempts to discrimi-
nate, and the other acts of discrimination which were undertaken in
furtherance of these practices or arrangements, were violative of the
Act, is based on the following :
As more fully detailed in the Intermediate Report, there were ex-
clusive hiring practices or arrangements between Local 318 and Porter,
Potashnick, and PCI which provided, inter alia, that nonmembers of
Local 318 pay a weekly permit fee of $2.50 as the price of clearance for
employment at the various projects involved herein. Nonmembers,
thus, were required to pay over $10 a month to Local 318. On the other
hand, the only financial obligation of members of Local 318 working
on these same projects was to pay monthly dues of only $3 for B card
holders and $5 for engineer A and C card holders. This disparate
treatment in the amounts paid in order to secure employment, being
predicated solely on membership or nonmembership in Local 318, is a
form of discrimination in employment which inherently encourages
2 We reject, as contrary to fact, Local 318's contention that the Trial Examiner in his
Intermediate Report demonstrated a lack of judicial temperament and evidenced bias
and prejudice.
PORTER -DE WITTE CONSTRUCTION CO., INC. 965
membership in a labor organization3 Accordingly, as the record
shows that Local 318 maintained and enforced with Porter, Potash-
nick, and PCI these hiring arrangements or practices, we find that
Local 318 caused, and attempted to cause, these named employers to
discriminate against their employees in violation of Section 8(a) (3),
and Local 318 thereby violated Section 8(b) (2) and (1) (A) of the
Act 4 We further find, in agreement with the Trial Examiner, that
Local 318, by the statement of Grisham, its agent, connecting his clear-
ance of Ewers for employment by Porter with the requirement that
Ewers pay the weekly fee of $2.50 to Local 318, violated Section
8(b) (1) (A) of the Act.
We agree with the Trial Examiner that Porter violated Section
8 (a) (3) and (1) of the Act by maintaining and enforcing the afore-
said unlawful hiring practice or arrangement with Local 318. Porter,
by placing Local 318 in a position to exact the discriminatory working
permit fees , must be held accountable for conditions required by Local
318 for clearance to work for Porter.
We do not, however, agree with the Trial Examiner that Potashnick
can be held here to have violated the Act by maintaining with Local
318 the unlawful hiring practice or arrangement. As noted by the
Trial Examiner, while Local 318 was alleged to have maintained the
practice or arrangement with Potashnick, Potashnick was not alleged
to have violated the Act in this regard. The Trial Examiner, however,
found that such issue was "fully litigated," and, accordingly, held that
Potashnick violated Section 8(a) (3) and (1) by maintaining the prac-
tice or arrangement. Potashnick excepts to this finding on the grounds
that it was not charged with maintaining a hiring practice or arrange-
ment, that the complaint against it in Case No. 14-CA-2235 contains
no such allegation, and that no position was taken by anyone at the
hearing that it was so charged, nor did it consider itself so charged.
It is the Board's practice to allow the General Counsel considerable
leeway in amplifying or expanding certain details not specifically set
forth in the complaint, if they accord with the general substance of
the complaint, and as long as those details are fully litigated and offer
no element of surprise to the respondent, they are usually held to be a
proper basis for an unfair labor practice finding.,' However, when
the General Counsel attempts to prove, or the Trial Examiner makes
a finding of, an entirely new cause of action or violation not covered in
3Morri8on-Knudsen Company Inc., et al., d / b/a Robinson Bay Lock Constructors v
N.L R B , 275 F . 2d 914 ( C A. 2), enfg as mod 123 NLRB 12; Pardee Construction
Company, 115 NLRB 126, 127
4 In view of the decision of the United States Supreme Court in the case of Local 357,
International Brotherhood of Teamsters etc v . N L R B , 365 U S. 667, we do not adopt
the Trial Examiner ' s finding that the hiring arrangements were unlawful because they
failed to provide certain minimum safeguards deemed necessary by the Board in Mountain
Pacific Chapter of the Associated General Contractors , Inc, et al , 119 NLRB 883.
s Local 138 International Union of Operating Engineers , AFL-CIO, et al, 123 NLRB
1393, 1396 , footnote 8; Pacific Mills, 91 NLRB 60, 61.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint, the Board has rejected such offer of proof or finding.e
Under the circumstances herein, including the fact that we are not
satisfied that Potashnick's liability in this respect was fully litigated,
we find merit in Potashnick's exception. Accordingly, we do not adopt
the Trial Examiner's finding that Potashnick has violated Section
8 (a) (3) and (1) by maintaining the unlawful hiring practice or
arrangement with Local- 318.1
3. As stated above, we agree with the Trial Examiner that Local 318
by various statements and acts of its agents, attempted to cause
Potashnick and Porter to discriminate against their employees. These
statements and acts, which are more fully detailed in the Intermediate
Report, are as follows : (1) Union Business Representative Medley's
statement to Job Superintendent Spell on August 21, that Spell had
to lay off all employees when the Bradshaw Creek job was finished
because Spell was going to have trouble if he brought Aldridge to the
Lick Creek project; (2) Union Steward Quint's statement to Spell on
September 12 that Aldridge had taken his machine from the Bradshaw
Creek job to the Lick Creek job, that he was to park the machine there,
and that Medley had told him not to let Aldridge work; (3) Quint's
statement to Spell later that'same day that Spell put Aldridge on a
boom truck, that he work him a day or two, and that he then lay off the
truck and release Aldridge; (4) Medley's statement to Potashnick
Division Manager Garms on September 14 that Potashnick had the
obligation under their contract to lay off all operators at the comple-
tion of each job; (5) Medley's statement to Garms that same day that
the solution for getting the striking Potashnick operators back to work
was to get rid of Aldridge; (6) Assistant Business Representative
Grisham's statement to Garms that same day that Garms assign
Aldridge to another machine, that another man go on Aldridge's, and
that Aldridge's machine be withdrawn in a few days and Aldridge be
told he was through; (7) Medley's statement to Garms, also on that
same day, that there was a "gentlemen's agreement" to clear all men
before they come on a project, to release them on finishing a project,
and not to transfer employees to another project without clearance by
Local 318; (8) the Committee's conditioning the return to work of the
striking employees at the Lick Creek and Goreville jobs on Potash-
nick's agreement not to employ Aldridge and Prince because they had
not been cleared by Local 318; (9) Union Recording Secretary Best's
statement to Potashnick Construction Superintendent Cook on Sep-
tember 30 that Cook could end all of his difficulties by getting rid of
Aldridge, and that Cook was keeping some 30 or 40 men from working
because he would not get rid of Aldridge ; and (10) Medley's refusal on
August 17 to clear Gist and Lawrence and the subsequent sending of
"Newspaper and Mail Deliverers' Union, etc., 101 NLRB 589.
7 Stokely-Van Camp, Inc and Bordo Products Co, d/b /a Stokely-Bordo, 130 NLRB 869.
PORTER-DEWITTE CONSTRUCTION CO., INC. 967
Street and Ewell to the Lick Creek job to do their work. As we have
found that the hiring practice or arrangement which the agents of
Local 318 sought to implement by this conduct was unlawful, we find
that Local 318, by the foregoing statements and acts of its agents,
violated Section 8(b) (2) of the Act.
As indicated above, we have found, as did the Trial Examiner, that
Local 318 was responsible for certain conduct of the Committee. The
Trial Examiner also found, as alleged by the General Counsel in Case
No. 14-CB-823, that the Committee was a labor organization within
the meaning of Section 2 (5) of the Act, and as such was liable for the
conduct of the members comprising the Committee. We do not agree.
The record shows that when the members of the Committee, which
included Union Steward Lawrence, met with Potashnick officials on
September 26 for the purpose of advising Potashnick of the terms
under which the strikers would return to work, these members were but
carrying out the earlier demands of Local 318 respecting the employ-
ment of Aldridge. The action of these members establishes that they
were functioning for the sole purpose of furthering Local 318's de-
mand that Aldridge not be employed because he had not been cleared
by Local 318. Prince was included in this demand at this time be-
cause he had sided with Aldridge. As Local 318 was the duly con-
stituted bargaining representative of the members of the Committee
and the other striking Potashnick operators, it had the primary duty
of negotiating the return of the Local 318 operators to their jobs at
the Lick Creek and the Goreville projects. Although a group of em-
ployees might, under some circumstances, become a labor organiza-
tion, we are satisfied that the Committee here did not become one but
rather was at all times material an internal and integral functioning
part of Local 318. In these circumstances, we find that the members
of the Committee were acting only as agents for Local 318 when they
met with Potashnick officials. Accordingly, while we hold Local. 318
liable for the Committee's action, we shall not hold the Committee
itself liable' as a labor organization, and shall dismiss the complaint
in Case No. 14-CB-823.
4. We agree with the Trial Examiner that both Aldridge and Prince
were discriminatorily terminated. It is clear from the record that
both terminations resulted from Local 318's enforcement of its un-
lawful hiring practice or arrangement. However, we do not entirely
agree with the Trial Examiner as to the dates such discrimination took
place. As to Aldridge, the Trial Examiner determined that liability
for backpay resulting from his termination should run from Septem-
ber 14, thus, inferentially, finding that Local 318 had successfully
caused his termination on that date. However, as noted elsewhere
in the Intermediate Report, it was not until September 30, following
the end of the strike, that Potashnick yielded to Local 318's pressure
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and terminated Aldridge. The record shows that on September 30,
when Potashnick attempted to put Aldridge to work, Best, Local 318's
recording secretary, told Potashnick Superintendent Cook that Cook
,'could stop all the difficulties and all the trouble . . . by just getting
rid of Mr. Aldridge," and that Cook "was keeping some 30 to 40 men
from working because of the fact that (he) would not get rid of
Tommy (Aldridge)." Aldridge was then removed from the job. Al-
though Aldridge again reported for work on October 2, he was not
put to work, and was now told not to report back again until the mat-
ter was settled. Aldridge was not contacted thereafter. While the
record clearly establishes that prior to September 30, Local 318 at-
tempted to cause Aldridge's discharge and had struck for this purpose,
it cannot be said that these attempts resulted in actual causation until
this date. However, even assuming that Aldridge was first termi-
nated on September 14-the date the strike began-we would not
order any backpay beginning with that date since, because of the
strike, Potashnick had no work which Aldridge could have performed.
Accordingly, we find that on September 30, when he was removed
from the job, Aldridge was discriminatorily denied employment, and
it was on that date that Local 318 caused Potashnick to unlawfully
terminate him, thereby violating Section 8 (b) (2) and (1) (A), and
that Potashnick on this date violated Section 8 (a) (3) and (1).
Prince's situation is different. • Unlike Aldridge, it appears that
Potashnick had work for and could have worked Prince at least some
of the time during the strike. Notwithstanding this, Potashnick, on
September 16, decided not to work Prince, the reason for this being
Potashnick's wish to avoid doing anything which might interfere
with the return of the striking employees. We agree with the Trial
Examiner that Potashnick's decision not to work Prince for this rea-
son constituted discrimination against Prince in violation of Section
8(a) (3) and (1). We also agree with the Trial Examiner that be-
cause the record does not establish that at that time Local 318 had
taken any position with respect to Prince it cannot be said that Local
318 caused the September 16 discrimination against Prince. The
record, however, does show that by September 26, Local 318 had taken
a stand on Prince's employment and now asserted, as it had with re-
spect to Aldridge, that Potashnick was not to employ Prince. Al-
though Best in his September 30 conversation with Cook used only
Aldridge's name, we think it clear, in view of the position taken by
Local 318 on Prince, that Best was also referring to Prince's employ-
ment. Cook so understood Best's remarks, for in order to avoid fur-
ther trouble with Local 318 it was decided not to work either Ald-
ridge's or Prince's machines. When Prince contacted Superintendent
Spell on September 30, he was told that it had been planned to put him
PORTER-DEWITTE CONSTRUCTION CO., INC. 969
to work the next day, but because of the trouble over the attempt to
put Aldridge to work, Prince would be called later. A couple of weeks
later, Prince was told by Spell that he had learned that the men would
strike again if Prince was called to work. Prince was never put back
to work. In these circumstances, we find, as we have in the case of
Aldridge, that Prince was discriminated against on September 30,
and that on this date Local 318 further violated Section 8(b) (2) and
(1) (A), and Potashnick further violated Section 8(a) (3) and (1).
While neither Aldridge nor Prince may have been formally terminated
on September 30, for all practical purposes the effective discrimina-
tions occurred on that date since neither worked thereafter.
5. We also find, in agreement with the Trial Examiner, that Local
318 caused Porter to discriminate against Gist and Lawrence, thereby
violating Section 8(b) (2) and (1) (A), and that Porter thereby vio-
lated Section 8 (a) (3) and (1). In our view, these discriminations
occurred when Porter, because Local 318, in implementation of its
unlawful hiring practice or arrangement, refused to clear these em-
ployees for work as shovel operator and oiler respectively and sent
out other men to do this work, gave these Local 318 referrals Gist's
and Lawrence's jobs. While it may be that Porter continued both
Gist and Lawrence on its payroll for a period of time after they had
been replaced, this bears only upon the amount of backpay these em-
ployees are entitled to receive, and cannot change the fact that they
were discriminated against when they were removed from their shovel
operator and oiler jobs.
6. We also agree with the Trial Examiner that Local 318 induced
and encouraged employees of Porter to engage in a strike, the object
being to force Porter to cease doing business with Potashnick until
Potashnick yielded to Local 318's demands concerning Aldridge. The
record shows that on September 20, after the work stoppage had
begun at Lick Creek and Goreville, John Street, a Porter employee
and a member of Local 318, was told by Leroy Lawrence, the union
steward for Local 318, that someone had been talking about the
Potashnick job and wondered if they shouldn't lay off until the Po-
tashnick matter was settled. Street told Lawrence that this was agree-
able to him. On the following day, the Porter employees refused to
go to work. Leroy Lawrence told Pulliam, Porter's superintendent,
that the men had decided not to work until the trouble with Potash-
nick was resolved. In these circumstances, we find that Local 318
was responsible for the strike at Porter, and that by this conduct
violated Section 8(b) (4) (A) of the Act."
8 The conduct found violative of the Act here occurred prior to the Act's amendment in
1959, and the reference to Section 8(b) (4) (A ) is to that section as it read prior to the
1959 amendments The conduct found unlawful remains proscribed by Section 8(b) (4)
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
and take certain affirmative action necessary to effectuate the policies
of the Act.
We have found that Local 318 maintained and enforced unlawful
hiring practices or arrangements with employers Porter, Potashnick,
and PCI whereby clearance by Local 318, upon the payment of fees
discriminatorily established upon the basis of union membership or
nonmembership, was made a condition of employment, and that Porter
maintained and enforced the unlawful practices or arrangement with
Local 318. We shall direct Local 318 and Porter to cease and desist
from maintaining or enforcing such unlawful hiring practices or ar-
rangements.
We also find it necessary, to dissipate the effects of the mainte-
nance and enforcement of the unlawful hiring practices or arrange-
ments, to order a reimbursement of the working fees paid by nonmem-
bers to obtain and hold their jobs with these employers.9 In finding
this reimbursement remedy necessary, we have carefully considered
the Supreme Court's decision in Local 60, United Brotherhood of
Carpenters, etc. v. N.L.R.B., 365 U.S. 651, and have concluded that
this decision does not withhold from the Board the power to direct
a reimbursement remedy in cases such as this. There, the Court
held that the Board could not order a union to return to its members
union dues and fees absent evidence that those members were coerced
into joining the union, that they joined in order to obtain employ-
ment, or that they involuntarily retained their membership in the
union. In sum, the Court held that the refunding of union dues is
not a remedial measure unless it can be shown that their "membership
was induced, obtained or retained in violation of the Act." We are
not here directing any return to members of the Union. Our remedy
is limited to the reimbursement of employees who were not members
of the Union, yet who were required to pay discriminatorily estab-
lished fees to the Union as the price for being permitted to work.
In Local 60 the Court emphasized the fact that the concept of trade
unionism was one of voluntary association. Thus, in the absence of
evidence of coerced association, the Board could not presume pay-
ments made by members to be made unwillingly. But where the
union exacts discriminatory payments from those who have not asso-
ciated with that union, there is no rational basis for assuming any-
0 Contrary to the Trial Examiner 's recommendations , we will not extend this reimburse-
ment so as to cover employees of employers not involved in these proceedings This remedy
applies only to those nonmember employees who were forced to pay working permit fees
pursuant to the practices and arrangements found herein to be unlawful.
PORTER-DEWITTE CONSTRUCTION CO., INC. 971
thing but that those exactions were not paid willingly. Accordingly,
we shall order Local 318 to reimburse the working permit fees paid
by the nonmember employees of Potashnick and PCI who were hired
pursuant to the arrangements or practices found unlawful herein.
Liability of Local 318 for reimbursement of Potashnick's nonmember
employees shall be for the period beginning 6 months prior to the
date of the filing and service of the charge in Case No. 14-CB-805.
As Local 318 was not charged with maintaining and enforcing the
unlawful practice and arrangement with PCI until the complaint was
amended at the hearing, liability for reimbursement of PCI's non-
member employees shall be for the period beginning 6 months prior
to the date of that amendment.
We shall also require Local 318 and Porter to similarly reimburse
the nonmember employees of Porter, their liability to be joint and
several. As all the conduct found unlawful here occurred within 6
months of the filing and servicing of the charges against Local 318
and Porter, the liability of these two respondents covers the en-
tire period they maintained and enforced their unlawful practice or
arrangement.
We have found that Potashnick discriminated against Ernest Prince
first on September 16, and again on September 30; that Potashnick
discriminated against Thomas L. Aldridge on September 30; and that
Local 318 caused both September 30 discriminations. To remedy these
violations, we shall direct that Local 318 notify Potashnick in writing,
with copies to Aldridge and Prince, that it withdraws its objections
to their employment by Potashnick, and we shall direct Potashnick, if
its work at the Lick Creek project has not yet been completed, to
offer these employees immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges. As to Prince, we shall require Po-
tashnick to make this employee whole for any loss of pay suffered as a
result of the discrimination against him during the period September
16 to 30. Potashnick and Local 318 shall, jointly and severally, make
Prince whole for any loss of pay suffered on and after September 30.
We shall also require that Potashnick and Local 318, jointly and sev-
erally, make Aldridge whole for any loss of pay suffered as a result of
the discrimination against him on September 30. Local 318's liability
for backpay shall terminate 5 days after notifying Potashnick, Ald-
ridge, and Prince of the withdrawal of its objections to the employ-
ment of these two individuals.10 The backpay shall be computed in
accordance with the formula stated in F. W. Woolworth Company,
90 NLRB 289.
10 Like the Trial Examiner, we find the November 10 letter of Local 318 to Prince
and Aldridge too equivocal to toll backpay liability
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also found that Porter discriminated against George Gist and
Claude Lawrence, and that Local 318 caused these discriminations. As
the record shows that Porter completed its operations at the Lick
Creek project on December 10, 1959, we shall not order their rein-
statement; however, we shall direct that Porter and Local 318, jointly
and severally, make these employees whole for any loss of pay suf-
fered as a result of the discrimination against them, the amounts to
be computed in accordance with the F. W. Woolworth Company,
supra, formula. As the record also shows that on September 17, Por-
ter suspended its operations and temporarily laid off its employees
until September 21, and that its employees were on strike from Sep-
tember 21 to 28, we shall not order any backpay for the period the
Porter employees were on layoff and strike."
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent, Porter-DeWitte Construction Co., Inc., its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 318, International Union
of Operating Engineers, AFL-CIO, or any other labor organization,
by terminating the employment of any employee, by maintaining or
enforcing a hiring practice or arrangement with Local 318, or any
other labor organization, whereunder employment is conditioned on
clearance by Local 318, or any other labor organization, upon the
payment of fees discriminatorily established upon the basis of union
membership or nonmembership, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment, except as authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Local 318, International Union of
Operating Engineers, AFL-CIO, make Claude Lawrence and George
"As we have in the case of Prince and Aldridge , we find Local 318's letter of Novem-
ber 10 to Gist insufficient for purposes of tolling the Union's liability for backpay.
PORTER-DE WITTE CONSTRUCTION CO., INC. 973
Gist whole for any loss of pay they may have suffered by reason of the
discrimination against them, in the manner and to the extent set forth
in the section of the Decision entitled "The Remedy."
(b) Jointly and severally with Local 318, International Union of
Operating Engineers, AFL-CIO, reimburse its nonmember employ-
ees for moneys illegally exacted from them in the manner set forth
in the section of the Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its office in Poplar Bluff, Missouri, copies of the notice
attached hereto marked "Appendix A." 12 Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
after having been duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Post at the same places and under the same conditions as set
forth in (d) above, as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice marked "Appen-
dix C."
(f) Furnish to the said Regional Director signed copies of the
notice marked "Appendix A" for posting by Respondent Union, as
hereinafter directed.
(g) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
B. The Respondent, R. B. Potashnick, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 318, International Union
of Operating Engineers, AFL-CIO, or any other labor organization,
by terminating or otherwise discriminating against its employees
because of their lack of clearance by Local 318, or any other labor
organization, under an unlawful hiring practice or arrangement.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
"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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer Thomas L. Aldridge, Jr., and Ernest Prince, if its work
at the Lick Creek project has not yet been completed, immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges.
(b) Make Ernest Prince whole for any loss of pay suffered during
the period September 16 to 30, 1959, by reason of the discrimination
against him on September 16, 1959, in the manner set forth in the
section of the Decision entitled "The Remedy."
(c) Jointly and severally with Local 318, International Union of
Operating Engineers, AFL-CIO, make Thomas L. Aldridge, Jr., and
Ernest Prince whole for any loss of pay they may have suffered by
reason of the discrimination against them on September 30, 1959, in
the manner set forth in the section of the Decision entitled "The
Remedy."
(d) Preserve and, upon request , make available to the Board or
its agents , for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its offices in Cape Girardeau, Missouri , and Lick Creek,
Illinois , if its work at this project has not yet been completed, copies
of the notice attached hereto marked "Appendix B." 13 Copies of
said notice , to be furnished by the Regional Director for the Four-
teenth Region , shall, after having been duly signed by the Respond-
ent's representative , be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered , defaced , or covered by
any other material.
(f) Post at the same places and under the same conditions as set
forth in (e) above , as soon as they are forwarded by the Regional Di-
rector, copies of the Respondent Union' s notice marked "Appen-
dix C."
(g) Furnish to the said Regional Director signed copies of the
notice marked "Appendix B" for posting by Respondent Union, as
hereinafter directed.
13 See footnote 12, supra.
PORTER-DE WITTE CONSTRUCTION CO., INC. 975
(h) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
C. The Respondent, Local 318, International Union of Operating
Engineers, AFL-CIO, its officers, representatives, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Performing, maintaining, enforcing, or giving effect to any
hiring practice or arrangement with Porter-DeWitte Construction
Co., Inc., R. B. Potashnick, Potashnick Construction, Inc., or any
other employer over whom the Board will assert jurisdiction, which
requires employees and applicants for employment, to be cleared by
Local 318, to pay fees discriminatorily based upon union membership
or nonmembership as a condition of employment.
(b) Causing or attempting to cause Porter-DeWitte Construction
Co., Inc., R. B. Potashnick, or any other employer over whom the
Board will assert jurisdiction , to discriminate against its employees
in violation of Section 8 (a) (3) of the Act.
(c) Stating or indicating that employees must pay to it fees dis-
criminatorily based upon union membership or nonmembership in
order to keep their jobs.
(d) In any other manner, restraining or coercing employees or
prospective employees of Porter-DeWitte Construction Co., Inc., R. B.
Potashnick, Potashnick Construction, Inc., or any other employer, in
the exercise of their rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(e) Inducing or encouraging employees of any employer to engage
in a strike or refusal in the course of their employment , to use, manu-
facture, process , transport , or otherwise handle or work on any goods,
materials , or commodities , or to perform any services , when an object
is to force or require any employer or other person to cease doing
business with R. B. Potashnick.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Porter-DeWitte Construction Co.,
Inc., make Claude Lawrence and George Gist whole for any loss of pay
they may have suffered by reason of the discrimination, in the manner
and to the extent set forth in the section of the Decision entitled "The
Remedy."
(b) Jointly and severally with R. B. Potashnick, make Thomas L.
Aldridge, Jr., and Ernest Prince whole for any loss of pay they may
have suffered by reason of the discrimination against them on Septem-
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 30, 1959, in the manner and to the extent set forth in the section
of the Decision entitled "The Remedy."
(c) Notify R. B. Potashnick, in writing, with copies to Thomas L.
Aldridge, Jr., and Ernest Prince, that it withdraws all objections to
Potashnick's employment of Aldridge and Prince.
(d) Jointly and severally with Porter-DeWitte Construction Co.,
Inc., reimburse the nonmember employees of Porter-DeWitte Con-
struction Co., Inc., for moneys illegally exacted from them in the
manner and to the extent set forth in the section of the Decision
entitled "The Remedy."
(e) Reimburse the nonmember employees of R. B. Potashnick and
Potashnick Construction, Inc., for moneys illegally exacted from them
in the manner and to the extent set forth in the section of the Decision
entitled "The Remedy."
(f) Post at its office, Harrisburg, Illinois, copies of the notice at-
tached hereto marked "Appendix C." 14 Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by the Union's representative, be posted by the
Union 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 by the Union to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Post at the same places and under the same conditions as set
forth in (f) above, as soon as they are forwarded by the Regional
Director, copies of Respondent Porter-DeWitte's notice marked "Ap-
pendix A" and Respondent Potashnick's notice marked "Appendix B."
(h) Furnish to the said Regional Director signed copies of the
notice marked "Appendix C" for posting by Respondent Porter-
DeWitte and Respondent Potashnick, as hereinabove directed.
(i) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint in Case No.
14-CA-823 be, and it hereby is, dismissed.
14 See footnote 12, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in Local 318, International
Union of Operating Engineers, AFL-CIO, or any other labor
PORTER-DE WITTE CONSTRUCTION CO., INC. 977
organization, by terminating the employment of any employee,
by maintaining or enforcing a hiring practice or arrangement
with Local 318, or any other labor organization, whereunder em-
ployment is conditioned on clearance by the union upon the pay-
ment of fees discriminatorily based upon union membership or
nonmembership, or by discriminating in any other manner in re-
gard to hire or tenure of employment or any term or condition of
employment, except as authorized by Section 8 (a)- (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section 8 (a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, jointly and severally with Local 318, in the manner
and to the extent as ordered by the National Labor Relations
Board, reimburse our employees who were not members of Local
318 for the moneys they paid to Local 318 for working permits.
WE WILL, jointly and severally with Local 318, make George
Gist and Claude Lawrence whole for any loss of pay they may
have suffered by reason of the discrimination against them.
PORTER-DEWITTE CONSTRUCTION CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This'notice must remain posted for 60. days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
4
Pursuant to a Decision . and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL or encourage membership in Local 318 , International
Union of Operating Engineers , AFL-CIO, or any other labor
organization , by terminating or otherwise discriminating against
our employees because of their lack of clearance by Local 318, or
any other labor organization , under an unlawful hiring practice
or arrangement.
630849-62-vol. 134-63
978 DE(r ISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, except- to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section
8(a)"(3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer to Thomas L. Aldridge, Jr., and Ernest Prince,
if work has not been completed at our Lick Creek, Illinois, proj-
ect, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority
and other rights and privileges, and will make Ernest Prince
whole for any loss of pay he may have suffered during the period
September 16 to 30, 1959, as the result of the discrimination
against him, and, jointly and severally with Local 318, make Ern-
est Prince and Thomas L. Aldridge, Jr., whole for any loss of pay
suffered as a result of the discrimination against them on Septem-
ber 30, 1959.
R. B. POTASHNICK,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
, • This notice mush remain posted for 60 days from the date hereof,'
and must not be alte-red, defaced, or covered by,any'other material.
APPENDIX C
NOTICE TO ALL MEMBERS AND NONMEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify you that :
WE WILL NOT perform, maintain, enforce, or give effect to any
hiring arrangement or practice" with Porter-DeWitte Construc-
tion Co., I tR. B. Potashnick, Potashncc; ^^iiistruction, Inc., or
any otheremployer, which requires employees and applicants for
employment to be cleared by us and,to_pay .us a fee discrimina-
torily based upon union • membership or nonmembership as a
condition of employment.
"WE WILL NOT cause or attempt to cause Porter-DeWitte Con-
struction Co., Inc., R.. B. Potashnick, or any other employer, to
discriminate against their employees in violation of Section
8(a) (3) of the Act.
WE WILL NOT tell,or indicate to employees that in order to keep
their jobs they must pay us fees discriminatorily based on union
membership or nonmembership.
PORTER -DEWITTE CONSTRUCTION CO., INC. 979
WE WILL NOT in any other manner, restrain or coerce employees
or prospective employees of Porter-DeWitte Construction Co.,
Inc., R. B. Potashnick, Potashnick Construction, Inc., or any
other employer, in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in our Union as
a condition of employment, as authorized by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT induce or encourage employees of any employer to
engage in a strike or refusal in the course of their employment,
to use, manufacture, process, transport, or otherwise handle or
work on any goods, materials, or commodities, or to perform any
services, when an object is to force or require any employer or
other person to cease doing business with R. B. Potashnick.
WE WILL, jointly and severally with Porter-DeWitte Construc-
tion Co., Inc., make Claude Lawrence and George Gist whole for
any loss of pay they may have suffered by reason of the dis-
crimination against them on September 30, 1959.
WE WILL notify R. B. Potashnick, in writing, with copies to
Thomas L. Aldridge, Jr., and Ernest Prince, that we withdraw
all objections to their employment by Potashnick.
WE WILL, jointly and severally with Porter-DeWitte Construc-
tion Co., Inc., in the manner and to the extent as ordered by the
National Labor Relations Board, reimburse the nonmember em-
ployees of Porter-DeWitte for moneys paid to us for working
permits.
WE WILL, in the manner and to the extent as ordered by the Na-
tional Labor Relations Board, reimburse the nonmember em-
ployees of R. B. Potashnick and Potashnick Construction, Inc.,
for moneys paid to us for working permits.
LOCAL 318, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The problems raised by each of the five complaints herein are multiplied by the
consolidation and the need to keep in mind that the Employer Respondents in two
of the complaints are Charging Parties against the Union Respondent in two others,
one of which alleges a secondary boycott ; and that a group of employees is charged
with other violations as an independent labor organization . But recognizing the
events as a continuous -series, we can resolve all of the issues without that repetition
of the proof which would be necessary were the complaints severed and separately
980 DECISIONS OF NAT1oNAL LABOR RELATIONS BOARD
considered: the various violations will generally be noted in the sequence in which
they occur, without regard to the section violated or the respondent concerned.
The complaints herein, as amended, allege that (a) Local 318 has violated Sec-
tion 8(b) (4) (A) of the National Labor Relations Act, as amended, 61 Stat. 136, by
inducing and encouraging employees of Porter to engage in a strike, an object there-
of being to force Porter to cease doing business with Potashnick; (b) Porter has vio-
lated Section 8(a)(3) and (1) of the Act by maintaining with 318 and enforcing a
hiring practice or arrangement whereunder clearance by 318, for which it exacted
moneys from employees, was and is a condition of employment; and by depriving
employees George Gist and Claude Lawrence of their jobs in the latter half of Sep-
tember 1959 at the demand of 318 and for reasons other than their failure to pay
initiation fees and dues, and thereafter failing and refusing to reinstate them; (c) 318
has violated Section 8(b)(2) of the Act by maintaining with Porter, Potashnick,
and Potashnick Construction, Inc., a hiring practice or arrangement like that de-
scribed above; exacting moneys from employees for clearance; and causing or
attempting to cause Potashnick discriminatorily to deprive Thomas L. Aldridge, Jr.,
and Ernest Prince of employment, and Porter to deprive George Gist and Claude
Lawrence of employment; and Section 8(b)(1)(A) of the Act. by said practice or
arrangement, and exaction, and by telling an employee of Porter that he had to pay
318 a sum of money, other than lawfully permitted dues, weekly in order to keep
his job; (d) Potashnick has violated Section 8(a)(3) and (1) of the Act by depriv-
ing Prince and Aldridge of their jobs in the latter half of September 1959 at the
demand of 318 and of the alleged Employee-Committee, and for reasons other
than their failure to pay initiation fees and dues, and thereafter failing and refusing
to reinstate them; and (e) the alleged Employee-Committee has violated Section
8(b)(2) of the Act by causing Potashnick discriminatorily to deprive Aldridge and
Prince of employment. Some allegations of the complaints have been withdrawn,
and will not be considered herein.'
The answers, as amended, admit jurisdictional and certain other allegations but
deny the existence of the alleged Committee and deny commission of any unfair
labor practices as alleged.2
A hearing was held before Lloyd Buchanan, the duly designated Trial Examiner,
at Marion, Illinois, from January 11 to 20, 1960, inclusive. At the close of the
hearing, counsel were heard in comprehensive and worthwhile oral argument, for
which they are to be commended.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT ( WITH REASONS THEREFOR)
I. THE , COMPANIES ' BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was stipulated and I find that Potashnick, an individual proprietor with prin-
cipal office in Cape Girardeau, Missouri, is engaged in various States as a general
contractor in the building and construction industry; that during the 12 months
immediately preceding the hearing he performed services outside the State of Mis-
souri valued at more than $50,000; that he is prime or general contractor for the
construction of various overpass bridges, culverts, and certain amounts of paving for
approximately a 6-mile stretch of ,the new interstate Highway No. 57 at Bradshaw
Creek, Lick Creek, and Goreville, Illinois; that the Bradshaw Creek job and the
Lick Creek job are in Union County, Illinois, and are approximately 3 miles
' Even if what is clear in the record may later be distorted, I deem it unnecessary and
redundant to detail motions for severance , which were early made and denied , and other
motions when the motions, arguments, and rulings (or absence of rulings) appear fully in
the record . There is no more assurance of careful review of analysis and interpretation
submitted in the Intermediate Report than there is of careful review of the record As for
setting forth extracts from the record, what has been fully covered on the record need not
be repeated in the Intermediate Report; we have no greater safeguard against misstate-
ment of the latter than with respect to the former.
2 The existence of an agreement within the proviso of Section 8(a)(3) of the Act is a
matter of defense, and like other defenses does not have to be anticipated by the General
Counsel Construction and General Laborers Union , Local 320 , et at ( Yonker & Petti-
9ohn), 96 NLRB 118, 119. There appears to be no reason for a different rule with respect
to the burden of proof concerning any valid hiring-hall agreement (Mountain Pacific
Chapter of the Associated General Contractors, Inc, et at, 119 NLRB 883, 897) or any
other defense which might be raised. Cf. Chicago Bridge & Iron Company, 121 NLRB
595, 596. -
PORTER-DE WITTE CONSTRUCTION CO., INC. 981
apart; that the Goreville job lies partly in the counties of Johnson and Williamson
and is about 3 miles from the Lick Creek job; that the total of Potashnick's contracts
with the Illinois State Division of Highways for the above-mentioned jobs exceeds
$2,000,000; and that during the 12 months immediately preceding the hearing he
performed services in Illinois in excess of $50,000.
It was further stipulated and I find that Potashnick is the principal stockholder
of and controls Potashnick Construction, Inc. (referred to as PCI), a Missouri
corporation engaged as a general contractor in the building and construction in-
dustry; that Potashnick performed all of the work on the Bradshaw Creek job,
retained the bridge and culvert construction work at Lick Creek, subcontracting
certain portions of the excavation and grading work there to PCI, and subcontracted
to PCI excavation and grading, culverts, and bridge and clearing work at the Gore-
ville project; that the amount of the latter subcontract is more than $50,000 but not
more than 50 percent of the total Goreville contract, which is more than $2,000 000;
and that during the 12 months immediately preceding the hearing PCI performed
services outside the State of Missouri valued at more than $50,000.
It was further stipulated and I find that Potashnick began work at Bradshaw
Creek about October 15, 1958, and, insofar as Potashnick operators were concerned,
completed it on September 12, 1959; that his work on the Lick Creek site began on
or about July 13, 1959, and that the following work was continuing at the time of
the hearing: Potashnick's on the Lick Creek site, which began on or about Septem-
ber 13, 1959, PCI's at Lick Creek, which began on or about August 3, 1959, and
PCI's on the Goreville site, which began on or about August 3, 1959; and that
Potashnick and PCI have interlocking management and supervision, and that they
frequently interchange employees.
It was agreed at the hearing that Potashnick, PCI, and other associated companies
may individually and jointly be referred to as Potashnick and be considered herein
as the Respondent Employer Potashnick. I find that Potashnick is engaged in com-
merce within the meaning of the Act.
It was further stipulated and I find that Porter, a Missouri corporation with prin-
cipal office in Poplar Bluff, Missouri, is a general contractor doing business in
several States; that during the 12 months immediately preceding the hearing it per-
formed services outside the State of Missouri valued at more than $50,000; that in
or about August 1959 PCI subcontracted to Porter the work of crushing rock to
provide fill for culverts and bridges at the Lick Creek site; that the amount of this
subcontract was more than $50,000; and that in the course of this subcontract Porter,
during the 12 months immediately preceding the hearing, performed services at
Lick Creek in excess of $50,000. I find that Porter is engaged in commerce within
the meaning of the Act.
It was admitted and I find that 318 is a labor organization within the meaning of
the Act. With respect to the Employee-Committee, reserving for the moment
reference to the acts in which its members allegedly engaged, we can now declare
the decision on the issue whether the four individuals named as Respondents con-
stitute a labor organization. (The finding noted at this point for convenience only
has of course followed consideration of the facts set forth infra and as they appear
in the record.) I find that the Committee composed of Jones, Nolan, Lawrence,
and Knupp has functioned as and is, for the purposes of this proceeding, a labor
organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
Reference hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been resolved;
findings are made herein on the basis of reliable, probative, and substantial evidence
on the record considered as a whole and the preponderance of the evidence taken,
and evidence in conflict with the findings which has not been discussed has not been
credited.3 As will be indicated, I have accepted as credible the testimony of some
witnesses in part only; rejecting portions, I have felt warranted, considering their
entire testimony and their demeanor, in crediting other portions of given witnesses'
testimony.
The issue of working dues will first be considered inasmuch as the facts in that
connection are basic and cast light on the other issues. Because the various events
are interrelated, the other essential facts will next be stated without immediate refer-
' Carnegie-Illinois Steel Corporation (Joliet Coke Plant), 95 NLRB 763, 765 The
record will itself disclose careful consideration given during the hearing Such considera-
tion has since been supplemented Whether or not it be deemed "adequate" (Arrow Gas
Corporation, 124 NLRB 766), consideration has been given to all of the evidence
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence to the various causes before us. The findings will then be made and con-
clusions drawn.
A. Clearance and working dues
A substantial amount of 318's income is derived from working dues; for the July-
September quarter of 1959, approximately one-half is attributable to working dues,
the balance being derived from the dues of several different classifications of members
and their initiation fees. Members hold engineers cards (these are known as "Big
Card" men), A cards, B cards, and C cards. All, except B card holders who pay $3
per month, pay $5 per month dues as members and for the privileges of membership.
Working dues paid by nonmembers when they are working are $2.50 per week, or
more than $10 per month.
Indicating a variation from 15 to 100 as the maximum number of those who pay
working dues during the year, Medley, 318's business agent, conceded when pressed
further that the number exceeded 100 "in past years." Although the figures in this
connection are limited, it is clear from the fact that 318's income for the third quarter
of 1959 was almost $19,000, that the half received from the men who pay working
dues came from at least three times Medley's maximum of 100-and that quarter
had closed only 3 months prior to the hearing.
The regular and uniform weekly payments made by nonmembers who work on
jobs in 318's jurisdiction are referred to by the Union as working dues or service
dues, and by the men as permit fees or just "permit." Medley testified that permit
fees used to be collected but that the system was discontinued because permits are
not allowed. Thereafter a form of agreement was adopted by 318 early in 1958.
Medley explained that, while many contractors and members of 318 refer to the $2.50
payment as a permit fee, ". . . we do not call it a permit fee, as myself, I haven't
since the law has not allowed it to be collected." We shall see that this is indeed a
permit fee and unlawful, whatever Medley calls it.
As Medley told it, men who were not members of 318 came in and offered to pay
working dues "for working privileges, or wanting to help support the local union";
he refused such payments but "they continued to come in," and he accepted the
donations on his attorney's advice. Medley had called his attorney to get "an agree-
ment . . . whereby (318) would permit (nonmembers) to pay their donations."
The permit card is in the form of an agreement under which the signer commits
himself to make regular payments to 318 while he is in covered employment. Local
318's obligation is declared to be to process meritorious grievances and to enforce
payment of union wages and compliance with other "union standards and conditions
of employment where the ( signer ) is employed by an employer having a collective
bargaining agreement with the Union." (While, as noted, all of the nonmembers on
these jobs pay working dues, 318's obligation under the agreement does not apply
to those who are employed by Porter, which does not have a collective bargaining
agreement with 318.) Once signed, the agreement by its terms continues in effect
for a year and is automatically renewed from year to year unless notice of cancella-
tion is given 60 days prior to any expiration date. It is interesting that, although he
denied the concept of permit, Medley did not himself succeed in avoiding use of the
word as he testified that he asked his attorney for an agreement which would "permit"
nonmembers to pay (not, of course, to work). The following is from the CCH
Dictionary of Labor Law Terms:
Permit
(1) An authorization to work in a union shop given by the union to an
applicant for membership and good for the period his membership
application is being processed.
(2) Also, the permit to work at Journeyman' s wages sometimes given
by the union to apprentices in the final part of the apprentice period.
[Emphasis supplied.]
Permit fee
Fee (sometimes equivalent to the union initiation fee) paid by a worker
for his "permit."
According to Medley, the only permission granted by 318 was that which enabled
nonmembers to "pay their donations." But the permittees obligated themselves to
continue such donations. As for his testimony that the permit system had been
discontinued, there is no evidence that any employees were so told. It is clear that
the amount paid by a nonmember did not change. In fact the permit system has
been continued under the guise of oversize but unanimous "voluntary" donations
which were in fact exactions.
PORTER-DE WITTE CONSTRUCTION CO., INC. 9S3
That the weekly $2.50 payments were not voluntary but a condition of employment
is not negatived by the fact that Grisham, assistant business agent and auditor and
formerly president of 318, told nonmember Scott that he would let him work 4 and
only then spoke of and handed him a permit card on which $2.50 per week had
already been entered; and similarly that Ewers was already employed when Grisham
said, "I have cleared you but it will cost you two and one-half a week." Scott and
Ewers appeared to be sympathetic to 318. They impressed me as reliable; I do not
credit Grisham's denials The latter denied speaking to or knowing Scott, and im-
mediately thereafter testified that Scott "asked if it was O.K. for him to work," to
which Grisham replied, "It was all right with me." Further, according to Grisham,
when men on a job call the union office and report where they are, they call it
"clearing"; "cleared" had in years past been used "as a short for referral." Here,
and as we shall see again, is confusion in use of the term "clear": from the Union's
point of view, according to Grisham, it was formerly used in an active sense, while
it now is something passive as 318 merely receives information or reports.
To return to the point that working dues were requested after rather than before
the nonmember started to work, exaction of payment is no less such because the
victim is first permitted to taste of the fruit promised him, in this case to work. The
practice, uniformly successful, of obtaining signatures and payments from nonmem-
bers is clearly established. In fact, there is no issue concerning this, the explanation
by 318 being rather that the payments were voluntary.
Spell, Potashnick's superintendent on the jobs and thoroughly experienced in the
business and in dealing with 318 and other unions, testified against his company's
interest that on or about July 21, 1959, he asked Medley to clear men for work at
Goreville, and that every PCI operator at Lick Creek and Goreville was cleared by
318. Spell sensibly and credibly defined "clear" as meaning that "the union knows
that the men are on the job and it is O.K. with the union for them to work." It is
plain that, as Spell described it, PCI obtained employees at Goreville and Lick Creek
through 318 or through "Big Card" members of 318, or submitted the names of others
to 318 for clearance. At those projects, all men employed by PCI were cleared by
318 for the„specific project or had previously been cleared at another project and
-were transferred by PCI. This element of transfer by the employer without further
-.clearance by 318 was specifically objected to by 318. When Medley objected that
Aldridge had been sent out for a short time only but had worked all summer, and
said that he was not going to clear him, he was making it plain that clearance is the
act of the Union, not of the employer or employee, although at one point Spell
testified that it was something which he did because of his impression that there
would- be trouble if he did not. What he did was to clear with 6 318, i e., obtain
clearance from it. That Spell's impression of trouble was accurate is borne out by
the work stoppage on the various projects, infra. If no union representative stated
in haec verbs ,that the employer must clear with 318 before a man went to work, the
clearance procedure was no more voluntary with the employer than with the
employees.
While it was thus said that the Company cleared a man with 318 for work, as we
have just noted , the employer 's part in the clearance process is to submit names of
workers for clearance by 318 or to receive them after clearance by 318. This was
shown by Spell himself in the statement quoted in the preceding paragraph, and by
the other witnesses who testified concerning refusal of 318 to clear Aldridge and
Prince, infra. The active role which 318 played in employment of operators is fur-
ther indicated in the testimony of Scott, supra, that Grisham said he was going to
let him work.
We need not decide whether, as membership dues are dues for the privilege of
membership, the term "working dues" indicates per se payment for the privilege of
working. But to the extent that the latter payments are uniformly made and because
they are greater per working period than those of members, we have an item which
reflects on the credibility of witnesses who attempted to show 318's concern 6 for
nonmembers and its services for them . In fact, its service in maintaining reference
files and its insistence on what it calls referrals appear to be of limited value to non-
4 As distinguished from instances of specific discrimination and causation thereof, as
alleged, our immediate concern is with the general practice and arrangement.
5 Counsel for 318 recognized this phrase.
6 The fact that so many nonmembers pay working dues proves neither concern for them
nor activity in referring them to jobs The condition is quite consonant with a need for
more men than belong to 318 and more than its members are willing to accept into
membership We have testimony that some employees requested but were refused
membership.
984 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
members, as we consider the likelihood of voluntary contributions. The discrimi-
natees here found their job opportunities without 318's assistance; their problem was
to avoid interference by 318.
As for 318's agreement to serve nonmembers in connection with terms and condi-
tions of employment and grievances, it did not undertake to consult or to represent
them in collective bargaining despite their higher dues. These payments, so far in
excess of members' dues and joined in unanimously, would indeed be the envy of
United Givers Fund sponsors and beneficiaries, whether in southern Illinois or in
Washington, D.C. These were not voluntary donations but unlawful exactions, as
indicated by the reminders given, the uniformity and unanimity of payments, the
binding form of the agreements to pay entered into for an expressed consideration,
and the specific events noted infra. The exaction is no less such because it was gen-
erally unnecessary to resort to reminders. The uniformity of payments is -a tribute
(in the Barbary pirate sense) to 318's power and effectiveness, not to the employees'
altruism.
Medley objected to use of the word and the concept of "clearance." He explained
that some contractors, members, and nonmembers use the term instead of the
more correct "referral " When a contractor requests a man, 318 refers the latter
to the job (although apparently not always). At other times, when a man gets a
job, he calls 318 and reports so that, according to Medley, the Union will know
where he is and what he is doing, and will not refer him to another job. Medley
testified that he had "made a referral" when allegedly all that he did was to note on
his files that a man had been employed. I do not credit.this explanation of refer-
rals which do not at all refer. As for alleged use of the files to refer men who were
not working and to avoid calling those who were already employed, on an occasion
specifically cited Grisham did not use the files but made half a dozen calls, includ-
ing one to Aldridge who was at that time not available, before he found a crane
operator for another job. This, Grisham testified, occurred a day or a few days after
September 14. We can understand. that as a representative of 318 he was not, of
course, trying to get Aldridge off the Potashnick job; he did not until the follow-
ing week get the information (more on this infra) about the men's objections to
Aldridge!
We can consider the recent McCormick Construction Company 7 case in this con-
nection even if we do not compare the situation there with that in the instant case.
But we note that the Board so recently employed the term "clearance" without under-
taking to define it, as indeed it need not, since the meaning of the word is-plain; and
it is equally plain that'Medley's is a private and unusual definition. The Board has
considered many cases which involved the obvious violation inherent in -work
permits and clearance as a condition of employment. Here we have the novel defense
that what could scarcely be denied, since it was so frequently mentioned on the job
and at the hearing, is to be construed as the direct converse of what it actually is.
Clearance, which signifies action by a union, A, which does the clearing and clears
an employee, B, means rather, we are now told, action by B in giving notice to A,
which is on the contrary passive in this relationship! In the face,of such distortion of
plain meaning supported by admitted past practice and by the equally plain and
commonly used term, "permit," one might repeat Pilate's question: What is truth?
.Our understanding of "clearance" comports with the definition of "permit" as some-
thing given by a union, not received by it, as noted supra.
It should hardly be necessary to add that I do not believe that the permit or service
fees or working dues (more than twice members' dues for a given period, as noted)
.are voluntary contributions. As the picture was painted of service to nonmembers,
.some of whom had applied for membership and had been turned down, we were
at least spared the testimony that'their "voluntary contributions" were in apprecia-
tion' Any sarcasm 8 here cannot be as offensive as the insult to intelligence offered
,by the submission of such testimony; and this is but another way of saying that the
credibility finding here is as definite as it could be with respect to any provable fact.
Medley testified in this connection as elsewhere with a blithe disregard for the truth.
As Medley described it, new employees were not getting clearance from 318; they
gave information to it. Yet not even he, although he described the procedure, spoke
7126 NLRB 1246
6 This is not a matter of temperament; it does stem from the circumstances of this
case. (Gerlach Tanning Company, 122 NLRB 1119, 1122 ) Whatever other laws may be
involved,'the processes of the Board should not be perverted or abused by such incredible
testimony Nor should there be reluctance to discourage tactics of this nature by any
witness ; when there is a duty to speak in judgment, it is cowardly to remain silent
PORTER-DEWITTE CONSTRUCTION CO., INC . 985
of employees giving clearance to 318: the latter allegedly cleared the men by the act
of receiving information from them! That 318 does more than merely keep a file
of employees and applicants is indicated by the referral, infra, of a shovel operator to
Porter when one was already on the job.
The term "clearance" used by others more correctly applies to what Medley does
with respect to applicants for jobs. This is further shown by the colloquy, infra,
among Steward Quint and Aldridge and Belcher on September 12, and by Medley's
own statement in July that Spell must wait until the equipment gets in, when Spell
said that he had a list of men who had worked for him in Missouri and whom he
wanted to bring to this job. - Medley's explanation was disingenuous: he had allegedly
found that contractors list men but then do not bring them in, with the result that
Medley's files become messed up. Here it should be noted that Medley did not
tell Spell to wait until the men got in and started to work, when there could be no
more than mere listing of those hired so that records could be accurately maintained.
Rather, he said that when the equipment arrived would be the time to make assign-
ments and clear men for work, and 318's decisions could be based on then current
availabilities and preferences.
Medley's., alleged concern to maintain his files so that he might adequately and
fairly serve all,job applicants, even nonmembers at distant points, did not extend to
benefits which-applicants and employees received or were denied while membership
in 318 was denied them. Membership, the different classes of membership, and the
various privileges inherent in and flowing from membership are matters of the
Union's internal affairs and management . But it is pertinent to the issue of 318's
alleged concern for nonmembers to note that men who proffered initiation fees were
denied membership while-they and others were permitted to volunteer "donations"
of more than twice the union dues (and by agreement required to continue such
donations). Presumably some of the volunteers were unaware, or insufficiently ap-
preciative, of the opportunity and privilege which was theirs to make the donations.
At any rate they were somewhat encouraged by members who carried what have
crassly become known as permit cards. Medley testified that anyone on the job
can sign a card "on his own initiative"; in any event, as already noted, a man is not
"asked" to sign until after he has started to work.
From a reading of his testimony one might conclude that Medley is easygoing, even
irenic in his attitude toward nonmembers. He declared that he does not discriminate
against them; in fact, they uniformly volunteer to support 318, and handsomely,
while they work, at the same time overlooking the denial of membership. From such
testimony one is tempted to look for evidence of discrimination by Medley against
members and in favor of nonmembers! But the facts give the lie to any idea of non-
discriminatory treatment of nonmembers. • By 318's power to affect employment,
exemplified in Grisham's statement to Ewers, of which more infra, the strikes which
will be considered, the displacement of employees, and other acts, employees have
in fact been coerced by the system of clearance into paying permit fees, and have
been, restrained in respect to collective activities; and by the clearance and working
fee system 318 has caused and attempted to cause employers to discriminate unlaw-
fully, in violation of Section 8(b)(1),(A) and (2) of the Act-.9 Potashnick, by ad-
mittedly obtaining employees through or clearing them with 318, helped maintain
the unlawful practice, in violation of Section 8(a)(3) and x(1).10 While the main-
tenance by 318 of the, unlawful practice or arrangement with Potashmck among
others is alleged, this:violation,by practice or arrangement is not alleged against
Potashnick. But although not alleged, such violation was "fully litigated," having
been admitted as noted in Spell's testimony, supra; it is.added to Potashnick's other
violations of these sections found infra.
As for Porter's liability in this connection, its superintendent, Pulliam, testified
that, immediately on arrival at Lick Creek and pursuant to instructions from his office
that he clear with 318, he called Medley on August 17 and asked for clearance of
some men whom Pulliam wanted to bring to the Lick Creek job. This practice by
Pulliam was repeated several times thereafter. It was admitted and need not be
detailed here. Pulliam testified that there was no prior arrangement between his
company and 318. But, crediting him, and his further testimony that on the first
occasion Medley said that he had been expecting Pulliam to call and refused more
than limited clearance, and that Pulliam then had similar conversations with Grisham
and Quint, the steward on the lob, and received permission to put some men to work,
I find that a practice thus developed and was maintained between Porter and 318,
9International Hod Carriers etc., Local No 1445 (Fenix .& Scisson, Inc ),'120 NLRB 226.
10 The Lummus Company, 101 NLRB 1628. '
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation respectively of Section 8(a) (3) and (1) and Section 8(b) (1) (A) and (2)
of the Art. (Further details in this connection are set forth infra.) It is plain that
318 refused to clear some men and that it sent others to replace some who were
already on the job.
Again on the issue of the voluntary aspect of the payment of working dues, it
does not appear that any of 318's members were similarly altruistic. If $2.50 per
week was without exception deemed fair payment to enable 318 to render service
to nonmembers, one might expect that members' sense of responsibility (if not al-
truism) for their organization would prompt them or some of them to make volun-
tary donations to bring their payments within range of the outsiders'.
Another aspect which should be noted is that even if we could regard the fixed
amounts regularly paid by nonmembers as voluntary donations, their commitment
by signing permit cards and the consequent obligation to make payments greater
than those required of members while denied membership benefits, would themselves
encourage membership or attempts to obtain membership in 318, with the lower dues
paid by members and the greater benefits.ii "The natural tendency of such dif-
ferential is to encourage membership in Local (318)." 12
As for the colloquy among Quint, Aldridge, and Belcher mentioned supra,
according to Medley and to support his testimony that clearance is given to 318
and is for record purposes, once a nonmember reports to the steward on the job.
he is not expected to call Medley or the union hall; he must "(e)ither report to
the steward for the purpose of the steward letting the (union) office know (he has)
come to work on a project, if (he doesn't) want to make a call" himself. Yet
after Aldridge and Belcher reported to Quint as steward on the job, he admittedly
asked whether they had reported to Medley, and Belcher said that he would call
Medley. I do not credit Quint's explanation that he "merely" asked: -Belcher did
not understand this as a mere request for information, and when Belcher said that
he would call Medley, Quint did not tell him that it was unnecessary. This reflects
further on the defense to the allegations of violation in connection with the clear-
ance requirements, and also on Quint's credibility.
It might conceivably be urged that the "clearance" process as described by Medley
is unique, being altogether different from the clearance or referral systems wherever
they are or have been in effect and have been analyzed; for 318 could merely main-
tain that its processes and procedures are different and lawful. But aside from the
credibility aspect which we have already considered and determined, the very use
of the terms "clear" and "clearance" told employees, as the record indicates, and
tended to put prospective employees on notice, that without clearance in the generally
accepted and unlawful (in the absence of necessary safeguards) sense they could
not work. Even were we to accept Medley's private definition of clearance, 318
is liable for the tendency to interfere with organizational activities and for the
discrimination caused.
To this point we have found that Medley's testimony is unreliable : We shall
further see infra, when we consider the action taken by Potashnick, Porter, and 318
with respect to various individuals, that Medley well understands the meaning of
"clearance" and that he has refused to clear nonmembers for work, explaining that
he had other men available for those jobs. At other times, Medley gave employees
"permission" to bring men in. His insistence to Spell on August 21 that on the
completion of the Bradshaw Creek job all of the men be laid off is further evidence
of his attempt to control employment. Certainly such layoffs would not help 318
to maintain its files, and the request gives the lie to Medley's explanation to that
effect The system of work permits or permit cards is just that: it is used by 318
to clear or permit a nonmember to work or remain on the job, and to indicate to
members that they may work with him. As a method of permit by 318 rather
than of notice to it, it can be used, and has been, to interfere with rights of em-
ployees and to cause discrimination.
In exercising their authority to hire, the Potashnick and Porter superintendents
followed the practice of restrictively and unlawfully clearing men-with or having-
them cleared by 318 That the employer balked in Aldridge's case, as we shall
see, merely points up their admitted prior acquiescence in that practice. Whether
or not there was a formal arrangement so to clear, the practice and 318's insistence
on its maintenance are violative, as found. Whatever convenience attaches to
using 318 as a source for qualified men, limitation to 318 and insistence on such
u This bears on the question of remedy and refund of payments , infra.
'2 Morrison-Knudsen Company, Inc., at al, d/b/a Robinson Bay Lock Constructors v.
N.L.R B ., 275 F. 2d 914 (CA. 2).
PORTER-DE WITTE CONSTRUCTION CO., INC. 987
limitation without evidence of the safeguards required 13 became both inconvenient
and unlawful.14
B. Other events and violations
To this point I have made credibility findings with respect to several witnesses.
In addition to these and any later specific references, it can here be said that I
reject and do not rely on the testimony of Belcher, Quint, Nolan, Hilliard, Jones,
Medley, and Grisham, these being all but one of the witnesses called by 318 or
the Committee. With respect to these, I base my credibility determinations on both
the witnesses' demeanor as I observed them and_ improbabilities .and inconsistencies
as they plainly appear on the record. Inconsistencies are both clear and numerous,
and require no further comment at this time. As to the last of the witnesses
called by 318, Knupp, his testimony adds nothing to what we otherwise have;
his and the testimony of the others is replete with alleged rumors not tracked down
or connected with specific individuals, and with references to the boys or the man
or most of them without further identification, the explanation being generally
offered that the witness could not recall who these were. Witnesses who cannot
or will not identify any men who attended , allegedly discussed pros and cons, and
said that they would or would not return to work-with the limited exception of
those already identified as having taken other steps-such witnesses are not relied
on. As we shall note infra, all of this testimony adds up to a refusal by all of
the men to work on the basis of insistence by some, unidentified and whose number
we have never been told. Some unidentified employees allegedly made threats;
these or some others allegedly decided ; and the employee witnesses (and the other
employees) just went along Enough has been noted to this point, both specifically
and generally, to indicate that the testimony on behalf of 318 is thoroughly un-
reliable. Neither do I credit the testimony of the General Counsel's witness Prince,
who was also and quite apparently unreliable. From this point there will be only,
a few additional findings as to credibility.
Aldridge, an experienced operator (the terms "operator" and "engineer" are
used interchangeably) of cranes and other heavy equipment, is not a member of
318; he testified that he has paid "permit" since 1948 whenever he worked in
318's territory. He worked for Potashnick at Bradshaw Creek from March 17, 1959,
until September 12, when the aspect of the work with which we are concerned
was completed. From March until September 25, he paid $2.50 per week to
318. He was meticulous as he gave this and other testimony. He produced a
diary, which was made available to counsel for cross- examination Although some
items were not mentioned in the diary, no errors or inconsistencies were noted
despite the opportunity thereby presented to impeach him. My impression of his
reliability in the face of lengthy cross-examination was thus bolstered
In connection with his attempt to obtain work elsewhere on March 13 and 14,
1959 (just before the statutory period with respect to 318), Aldridge thought
that Medley had lied to him in denying knowledge that a crane had been brought
to that other job, and that 318 was unlawfully preventing or limiting his em-
ployment.. Thus on,March 17 he disingenuously told Cook, a Potashnick super-
intendent .at Bradshaw Creek, that 318 had sent him, although only his friend,
Cox, another Potashnick employee, had called and told. him of the Potashnick
job and allegedly said that Medley had approved. Aldridge testified further that he
felt that 318 was discriminating against him since another man was first assigned
to the job which he wanted, and he did not get it until the third day. As to the
latter item , Cook first satisfied himself as to Aldridge' s competence . Whatever
the basis for Aldridge's impression and feelings (the March events are not in
issue), these explain his approach to Cook and this threat to take the matter to
Washington. (Cook testified that Aldridge was agitated and upset , embittered and
incoherent) But Aldridge's attitude and impression do not determine the issues
before us: we are interested in the facts which may or may not have warranted
that attitude With respect to those facts, I am not prepared to reject all of
Aldridge's testimony despite his indicated unreliability as he sought to explain his
threat to Cook. on March 17 at least partially by reference to a later assignment
18 Mountain Pacific Chapter of the Associated General Contractors , Inc, et at, 119
NLRB 883, 897
14 That practices herein found may violate other statutes is not our present concern ;
that they violate the Act Is (Nassau and Suffolk Contractors ' Association, Inc, et at.,
118 NLRB 174, 176 ) It is in the latter connection that such practices were testified to
at the hearing and are herein considered.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of another man to the crane; and his insistence that another employee, McGowan,
was a steward although in an affidavit he had declared that McGowan held no posi-
tion with 318. On the whole, Aldridge impressed me at the hearing as a careful
and truthful witness, and review of the testimony has not modified that impression.
With the completion of his work at Bradshaw Creek on Friday, September 11,
Aldridge was instructed by Cook to drive his crane to the Lick Creek job the
following morning. With his oiler, Belcher, he drove the crane up and reported
to Cook, who was now on that job and who instructed him to report to Quint,
318's steward: (Although further proof is unnecessary, this bears on the question
of clearance and unlawful practice, supra.) When Aldridge told Quint that he
was ready to go to work on the crane which he had driven up, the steward replied
that Medley had said that another man, ,a member of 318, would take that machine
and that, if he couldn't, still another would. Aldridge protested that the other man
had no greater right to work there, and made the legally correct (even if temporarily
overruled by circumstances) statement that he "had a job with Potashnick." To
Belcher, Quint said that Medley had said that he could not work on the job but
that Medley would take care of him. According to Quint, he admittedly told Cook
before Aldridge and Belcher arrived that he wanted to see them; but it was Al-
dridge who spoke of the other men wanting his rig, to which Quint allegedly re-
plied only that there were rumors to that effect. We have and shall again note
the extent of Quint's reliability. No more do I credit Belcher, who confirmed'
Quint's testimony concerning these rumors but "wasn't paying much attention"
to what Quint and Aldridge were saying, and was not "necessarily" interested in
what they were talking about. I credit Aldridge's account.
On that same morning of 'September 12, Quint told Spell at Goreville that
"Aldridge had walked his machine up to Lick Creek and was to park there and
Mr. Medley said not to let him, work." To the interference with Aldridge directly
was now added an attempt to cause the employer to discriminate unlawfully, this
latter being a culmination of Medley's attempt of August 21, although that earlier
attempt appears not to have caused Aldridge to lose any pay
An issue developed concerning Quint's status as steward. One of 318's answers
admits that he was a steward until September 16, 1959. He had been steward at
Bradshaw Creek, and in July Spell spoke to Medley about the Goreville job, and
the latter stated that Quint could act there for the time being and until further
decision was made. Thus it is clear that at least until September 16 (there is also
reference to September 18), 318 was responsible for Quint's acts within the appar-
ent scope of his authority and to the extent that it held him out as its representative.15
Beyond that date, such responsibility does not depend on formal investiture or
specifically declared continuance. If an employee functions as steward, there
being no other on the job although one is provided for under the contract, and he
is regarded as such by the other employees and his activities are recognized and
accepted by the union, the latter cannot be heard to question his status as its repre-
sentative. However convenient it may be to do so, the union may not disclaim
authority while itself recognizing it. We are not compelled to accept and rely
on Medley's testimony concerning appointment procedure and his failure to follow
it as evidence to overcome the proof of stewardship; and if Medley removed Quint
from office on September 18, it does not appear that the other employees were
so advised at the meeting on the following day or at any other time. The estab-
lished practice speaks with clarity of Quint's status as representative of 318.
Nor are Quint's acts as steward limited to what occurred at Goreville. With
other Goreville operators he appeared at Lick Creek and, in addition to his general
status as 318's representative, not disavowed, he still served as representative of
the Goreville men. The attempt to prevent employment of Aldridge at Lick Creek
was carried out by men from both Lick Creek and Goreville (many more from
the latter project), and as steward at Goreville, Quint bound 318 for the acts of
the men with him and his statements were similarly binding, aside from the joint
effect of the Goreville-Lick Creek activity.
Similarly with respect to Leroy Lawrence, it is alleged 'and denied that he was a
steward. We do not rely on his alleged introduction of himself at the meeting on
the morning of September 26 as steward for Porter. (It is not claimed that he
was appearing for 318 at this meeting or that it held him out in such a way as to
be bound by this alleged statement.) Nor is it necessary to find that Lawrence
15 As noted in a different connection, 318 is responsible for Quint's acts "even though
the acts . were not expressly authorized or might not be attributable to (it) on strict
application of the rules of respondeat superior " International Association of Machinists
etc, Lodge No 35 v. N L R.B., 311 U S 72, 80.
PORTER-DE WITTE CONSTRUCTION CO., INC. 989
was a steward to determine 318's liability for the acts of the Committee, of which
he was a member. But 318 is responsible for Lawrence's acts or statements in con-
nection with the refusal of the men to work. Although Lawrence denied (he was
not a reliable witness) that he had ever told Pulliam or any Porter employee that
he was a steward, Grisham told Pulliam on September 13 that he was. If Grisham
later learned that Lawrence was not a steward (according to Pulliam, Grisham
said that he had himself appointed Lawrence), such information was not conveyed
to Pulliam, so that as far as Porter knew, Lawrence was 318's representative. The
refusal of the men to work being connected with 318, as we shall see, some evi-
dence of Lawrence's authority as representative of 318 may be found in the fact
that at the conclusion of the September 26 meeting he told Potashnick's repre-
sentative that the men had made a mistake and should not have gone out; that they
were ready to go back; and that Porter should call its Missouri men to the job,
and in the fact that the men did resume work on Monday morning, September 28.
We return now to events on the job in chronological order. Aldridge arrived
at the Lick Creek project about 6:30 a.m. on Monday, September 14, starting time
being 7 a.m. As he started toward his crane, i.e., the one which he had brought
up on Saturday, Belcher told him, "They (will) peel our heads if we worked."
(This remark is not attributable to 318.) Aldridge nevertheless continued to and
got into the crane. He did not start the machine but, as he sat there, he saw four
or five operators (some were from the Goreville project) and a few other em-
ployees in a group, among them Best, 318's recording secretary; these talked for
some 10 or 15 minutes, and then left the job. Cook told Aldridge to "stay on the
job"; Aldridge did stay but was not given any work to do and was not paid for
the day. No operators worked at Lick Creek that day.
That evening Grisham called Aldridge at home and asked him to take another
job, in Harrisburg, Illinois. To this Aldridge replied that he had a job with
Potashnick and, perhaps tactlessly, added, "You will have to contact my attorneys."
Testifying to this conversation, Grisham not only erred as to the date, but was
confused as he first placed it on Saturday then on Sunday, before the men walked
off, and then as having occurred 1 to 3 days after a meeting with- Potashnick
representatives on Monday.
Aldridge reported to the job and for work each day until October 2, when Cook
told him to leave until the matter was settled. Although other craftsmen worked
during that period, Aldridge did not; nor did other operators until October 1.
Aldridge testified that there was work which he could have done, but that under
the union-employer agreement he had to have an oiler; and he was not given work to
do. Cook testified that he refused to let Aldridge operate a crane without an
oiler.
After his conversation with Quint on the morning of September 12, Spell called
Garms, Potashnick's division manager in charge of the work which Spell more
directly supervised. Garms came to Goreville later that day, and Spell told hun
of his conversation with Quint. Between Spell's attempt to Teach Garms by tele-
phone and the latter's arrival, Quint approached Spell and asked whether he had
changed his mind concerning laying Aldridge off. When Spell answered in the
negative, Quint said that he had talked to the men at noon and they were "awful
riled up about it"; and he suggested that Spell put Aldridge on a boom truck, work
him a day or two, and then lay the truck off and release Aldridge. Here again
was an attempt by 318's steward to cause unlawful discrimination. Spell demurred,
saying that he could not do that; Aldridge was a good operator- and he had no
complaints about him. .
Early on September 14, employee McGowan (the General Counsel withdrew his
allegation that McGowan was a steward) told Spell at Goreville that he was spokes-
man for the men and that Aldridge was not fair since he would not pay his dobie
dues 16 and made more than one change of equipment during a day. Spell said that
he did not have authority to lay Aldridge off, and none of the Goreville operators
went to work. Which of the operators at this other project were thus offended
by Aldridge's unfairness , we are not told; those operators acted with unanimity in
protest against Potashnick' s willingness to.employ Aldridge at Lick Creek.
Spell then telephoned Garms at Cape Girardeau and told him what had happened,
whereupon Garms called Medley, told him of Spell's call, and asked why the oper-
ators had not gone to work. I credit Garms' testimony that Medley said that he
had not known of any trouble previously but that men had called him that room-
ing and told him that they would not work. Medley continued as he had to Spell
16 This suggests that payments were not altogether voluntary and were unwillingly made
even after the permit card was signed.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 or 4 weeks before that it was the Company's obligation under the contract to lay
off all operators at the completion of each project; to this Garms replied that he
would consult his attorneys. We have already noted this attitude and statement for
their bearing on the issue of clearance; it is unnecessary to recount further testi-
mony bearing on that issue. Medley was now attempting to cause Potashnick to
discriminate unlawfully against Aldridge.
Garms called Medley again and arranged to meet at 318's office in Harrisburg,
Illinois, at 3:30 that same day, September 14. The meeting was attended by Garms,
Spell, and Harrison, the president of another contractor on some of these projects,
on one side, and by Medley and Grisham on the other. From the credible evi-
dence it appears that, in response to Garms' question as to what the trouble was,
Medley stated that the men would not work with Aldridge since he had violated some
of the union rules, specifically that he had gone from the job at Bradshaw Creek
to Lick Creek. Leaving for the present the question of 318's liability for the work
stoppage, Medley again violated the Act when, ostensibly speaking only for the
operators who refused to work, he stated that the solution was to get rid of
Aldridge. However he might be described, as spokesman or as a mere reporter,
he could not divest himself of his position as 318's chief official. The Union's
effort to get rid of Aldridge was continued with Grisham's suggestion that Aldridge
be assigned to another machine, another man to go on his, and that the other
machine be withdrawn in a few days and Aldridge told that he was through.
Garms protested that the net effect of these proposals would be to lay Aldridge off,
which would mean trouble with the Board and 318 also Medley insisted that the
men would not return unless Aldridge were gotten rid of: he had not been cleared
to work at Lick Creek. In fact, Medley had understood that Aldridge would be
at Bradshaw Creek for only 2 or 3 weeks, and he had been there all summer; 318
had never intended to clear him for Lick Creek.
When Garms pointed out that under the contract the employer has the right to
ask the Union for men but that it is not necessary to clear them with the Union,
and submitted a letter from Potashnick's attorney to that effect, Medley replied that
he knew that but, in connection with the agreement with the Contractors Associ-
ation, there was a "gentlemen's agreement" to clear all men before they came on the
projects and to release them on termination of a project; and that none would be
transferred to another project without clearance. Both Garms and Harrison said
that they had no knowledge of any such agreement. No practice or agreement is
found here, but Medley's claim of an agreement is further violative as an "attempt
to cause." According to Medley, who had complained about Potashnick's not
terminating Aldridge and reporting to 318 who was being put to work, it was
either Harrison or Garms who first referred to the existence of the alleged "gentle-
men's agreement" which Potashnick had now violated!
Garms then explained that Shelton, who is division manager over Aldridge's phase
of the work (and Cook's superior as Garms is Spell's), was out of town; and he
offered to hold Aldridge 's machine down , i.e., keep it idle, for a day until Shelton
returned on the evening of September 15 and could discuss the matter himself. To
this Medley replied that he would ask the men to return to work but in substance that
he had no control over them ad no assurance that they would. I regard with no
greater conviction than the Company did Medley's statement that, if Aldridge and
Cook could do the job themselves, there would be no "picket line" or "strike."
(Medley used the term although counsel for 318 maintained that the concerted work
stoppage at these projects was not a strike .) Clearly one operator with the superin-
tendent could not do the work which called for the superintendent and three opera-
tors, including an oiler . But how could Medley control and avoid a strike and picket
line under those circumstances if he was not able to prevent and terminate the then
current walkout? Or, if he could assure the Company that there would be no picket
line or strike if Aldridge and Cook handled the job completely by themselves, thus
indicating control of the other men, why did he not exercise that control to termi-
nate the strike? (There is no suggestion in the record that the strikers had agreed
and then informed Medley that they would neither strike nor picket under the con-
ditions which he cited.)
As this meeting of September 14 ended, Medley said that 318 would call the men
to report for work. He did not himself call any, but left it to Grisham. The latter
testified that on the evenings of September 14 and 15 (the men were to report on the
morning of the 15th) he called various employees, all of them members of 318,
and told them to report for work and "to get hold of the boys that (he) couldn't get
hold of, if they were close to them." It does not appear that any attempt was made
to reach any permit men. Aside from the time element ( this bears on the.enfire
question of 318's role and attitude with respect to the work stoppage), Grisham did
not tell any of those whom he called whom they should "get hold of"; nor, did they
PORTER-DE WITTE CONSTRUCTION CO., INC. 991
tell him whom they had informed. (On September 25, employee Nolan, an active
union man, told Spell that he didn't know anything about any offer to shut Aldridge's
machine down.) It will come as no surprise that the men did not return to work
on the 15th or through September 25.
Medley testified that he was told that some, but not enough, reported on September
15. Quite at a loss since he "didn't know what to do," Medley with Grisham's help
on September 18 called "the boys that struck the Potashnick jobs" to a meeting the
following morning. - At that meeting Medley told the men that they should return
to work, they were violating the agreement with the contractors association, and that
he wanted them to go back to work. He also read to them the following statement
in accordance with his attorney's instructions:
Operating Engineers, Local #318, has a contract with R. B. Potashnick, who
is a member of the Egyptian Contractors Association. In accordance with the
terms of our contract, this Union can not engage in a strike or a work stoppage.
This Union has not and does not authorize your walking off the job for any
purpose.
In order to fulfill our contract requirements, I am here to advise you to return
to work. The Union is required to take this action to fulfill its contract obliga-
tion with your employer.
At no time has any officer or agent of this Union authorized or approved or
ratified your individual action in walking off the job.
It may be unkind to point out that after "advising" the men to return, explana-
tion if not apology was thus made and repeated to the effect that the Union "is re-
quired to take this action." The self-serving aspects need not be discussed. We can
here borrow employee Hilliard's characterization that "Mr. Medley didn't have too
much to say." if ever a so-called disavowal could be said to have been made with a
"nod or a wink or a code," 17 this was it.
The men started to talk and Medley then left the room, presumably not to influence
or embarrass them. On September 14, when Quint allegedly informed Medley that
the men had walked off, Medley had pointed out that it was Quint's duty to try to get
them back to work. Considering their respective positions and authority, Medley's
uty was far greater. Having recognized Quint's, he certainly failed to perform his
own.
On the morning of September 21 Medley learned that the men had not returned
to work, and that evening he called a meeting for the following night. At this meeting
Medley again advised the men to go back to work and again read the statement,
supra. His attorney 'attended this meeting, endorsed Medley's remarks, and added
that it was foolish to let 1 man make 40 lose work. Medley and counsel then asked
the men to give them an answer so that Medley might notify Shelton; the two left the
room, returned in 20 or 25 minutes, and asked whether the men had come to a de-
cision. The reply was, "No, we haven't at this time," and the two then went home.
Without appearing to ignore the situation, 318 could hardly have done less than ar-
range these meetings. But the efforts of the responsive union representatives were
no more enthusiastic on September 22 than they had been on September 19.
A regularly scheduled union meeting was held on September 25. (We shall return
to this meeting shortly.) Before it opened, one of the Potashnick employees said
something to Medley about the Potashnick job, and Medley replied: "I don't want
to hear no more of it. I have washed my hands completely of it." His testimony
continued: "Because they had disobeyed me and had not listened. I don't want to
have any more to do with it." But this was hardly a disavowal. Medley did not
wash his hands of those who had and were allegedly disobeying: no steps were taken
to expel them ,from membership or otherwise to discipline them. Not disavowing
the actors, not taking any steps against them, he was not disavowing their acts. His
own actions or failure to act spoke more loudly to them, as it does now to us, than
his words.
Aside from 318's liability for Medley's own statements, and Grisham's ad Quint's,
which constituted attempts to cause Potashnick to discriminate, it would be easier
to believe Medley's testimony that he had disassociated himself and 318 from the
action of its members if we could believe, inter alia, that clearance is not clearance,
,that nonmembers turned down for membership persisted in offering regular contribu-
tions of more than twice membership dues, and that he had no control over the men
who at least so faithfully notified him of their work assignments. Further, the
17 United States v. International Union, United Mine Workers, 77 F Supp. 563, 566
Cf Truck , Drivers and Helpers Local Union No . 728, etc. (Genuine Parts Company),
,119 NLRB 399 , 406, 440
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged disassociation or washing of hands came after several direct violations by
,318's representatives , as noted, Medley among them.
On Friday morning, September 25, three employees , Nolan, Hilliard , and Cruse,
made an incidental stop at Goreville . The first two of these testified and, from their
testimony , it appears that Spell came out of his office, saw them , and asked about
the men returning to work. Spell allegedly said , "I offered to shut the machine down,
everything , what more can a man do?" 'and when he added the wish that someone
would do something about it, Nolan replied that he would talk to the men and see
what they would say. Spell remembered seeing the three men , but did not recall
this conversation ; neither did-he deny it.
Nolan , like other witnesses called by 318, could tell us only that at the Goreville
interchange on September 14 "some" men said that they would not work with Ald-
ridge. Who these were he did not say; nor did he offer any explanation for the stop-
page by Goreville men. These latter, including their steward Quint , went to Lick
Creek merely to see what was going on. Having , thus accompanied the others, Quint
now urged them to "go back to work." But "it seemed (to Nolan ) like the group
of men , as a group, said they wouldn't work - with ( Aldridge ), and some of them
said they were going home ." Nolan's testimony is interspersed with similar anony-
mous references and with other evidence of unreliability which need not be , hsted.
This same - Nolan , having fortuitously seen Spell on the morning of September 25,
testified to other events on that and. the following day. As the union meeting opened
that evening , allpf the Potashnick men (those who were members of'318 and had
come to the meeting) left the meeting room and went into an adjoining room,
which has been referred to as the voting room . This group of about 30 now dis-
cussed Spell's offer as it was reported to them : to shut Aldridge's machine down
until the matter was settled . An issue was now injected , whether the offer was to
shut the machine down for 1 day or until the matter was settled . What direct bear-
ing this has on the problems before us is not clear . Either arrangement was discrimi-
natory against Aldridge, and constituted violation by both Potashnick and 318. But
in view of the various references to this offer , and for its bearing for'credibility .and
any other purposes , it should be noted that even Nolan , when he testified concern-
ing his talk with Spell earlier that day, did not say more than that Spell had referred
to an earlier offer , that of September 14 to Medley and Grisham; Nolan did not tell
us that Spell had said or indicated that the offer was for more than 1 day. On-the
other hand, Medley himself acknowledged that Garms spoke of shutting Aldridge's
machine down for 1 day, until Shelton returned the following evening.
I find that this testimony concerning a different offer by Spell was contrived as a
pretext and a basis for again approaching Spell to induce him to keep Aldridge off
the job and get the others to return . Both before the meeting 'opened and after the
men gathered in the voting room , "it seemed like they was all willing to go back to
work" on the basis of the greater offer. Yet despite all of this discussion, an un-
named "somebody" ( again ) suggested that it would be a good idea to call Spell "to
see if he meant it"; and Nolan was first asked to make the call. This is indeed as
through a glass darkly: What greater assurance would there be in Nolan 's statement
after he telephoned Spell than in his report of the face -to-face - conversation that
morning? - • ' ' . r -=: _r
According to Nolan , some of the men suggested two others to accompany him
while he telephoned to Spell; it was otherwise testified that) several volunteered.
,Only two ' of these three testified .' Nolan told us that he informed Spell that the
men seemed ready to work but wanted to know whether he meant what he said;
.Spell replied , "Yes, but that was a week ago "; he wanted to call Garms, and-would
call and let Nolan know or meet with them . Although ' Nolan did not know why
,Spell spoke of a decision a week before when they had&'spdken that morning, he
apparently did not say anything to Spell about that. Nolan reported the conversa-
tion to those in the election room , who seemed to agree that they would go back
to work if Garms would carry through on his earlier offer ., Because Spell might ask
:for a meeting , and all could not get into "the little ' room ," they decided that they
should have some spokesmen.
According to Jones, who had accompanied Nolan to the telephone , he heard
'-Spell say that the offer had been made a week before and that he would have to
check with Garms. (With reference by Spell to the week before and the report
to the men to that effect, no one appears to have questioned Nolan concerning
his earlier statement that Spell had made the offer that -morning. ) Jones had
it that Nolan had asked Spell for a meeting ; some of the men now said that they
should meet , but that all could not go.
It was now variously testified that selections were made at random and that
some asked others whether they would go. While the men thus referred to those
to be selected as "spokesmen ," they selected them quite indifferently according to
PORTER-DE WITTE CONSTRUCTION CO., INC. 993
Nolan; so casual and apparently unimportant was it. Or was the picture thus
painted to show that what might be found to be a labor organization was not at all
formally organized?
Spell testified that Nolan called him at home about 9 p.m. on September 25
and asked whether a company representative would meet a committee of employees
to talk about going back to work; the circumstances under which they would go
back were not mentioned . It may not be necessary here to define different degrees
of negotiation ; but this testimony supports the finding that the call was placed,
not to support an alleged earlier broad commitment , but to negotiate a return to work.
. Spell called Garms , who agreed to meet with the Committee and, as agreed , called
Nolan early on the 26th and arranged a meeting for 11 o'clock that morning at
Potashnick 's office at Goreville. Garms and Spell appeared on behalf of the
Company, and Nolan , Jones, Leroy Lawrence , and Knupp for the employees or
those who were members of 318 and had selected them the night before. From
a resolution of the reliable testimony , it appears that Garms attempted to separate
the activity at Goreville and Lick Creek , urging that the men return to the former,
whatever occurred at the latter, where only Aldridge, Prince, and Belcher were
involved. But the employees ' representatives conditioned their return to work
at either job on agreement not to employ either Aldridge or Prince since they had
not been cleared by 318. Among the objections to Aldridge , it was stated that
"he wouldn't live up to his contract and (the men ) said if there was any overtime
got, he always got it." While most of the employees allegedly expressed concern
over Aldridge only, the Committee made it clear that neither Aldridge nor Prince
was to work.
When Garms said that Shelton would have to make any agreement insofar as
the Lick Creek job was concerned, and that he did not see how Shelton could
lay off Aldridge or Prince , the meeting ended. Whether or not Garms offered
to keep Aldridge out at some future time is not material to our issues . The Com-
mittee here attempted to cause, caused , and contributed to causing , Potashnick to
discriminate against Aldridge and Prince . This is so despite the earlier and con-
tinued discrimination since the Committee declared its conditional willingness to
terminate the discrimination and since further its declarations tended to make less
likely the reemployment of Aldridge and Prince : ostensibly disassociating them-
selves from 318, the employees through a committee were now declaring their own
opposition to the employment of Aldridge and Prince.
The Committee agreed to report to the men , Garms' proposal being that they
return to work, with Aldridge not to be employed after the shutdown for the
winter. That evening Nolan told Merritt , a Potashnick foreman who could' evidently
reach the employees who lived in Missouri , to tell those men to meet on the job
on Monday morning, September 28, and to tell the men and Spell that Nolan
believed they would go back to work on Spell's offer to keep Aldridge's rig shut
down-when no such offer had been made either the day before, as noted, or on
September 26 by either Garms or Spell. (We shall consider this in detail , infra.)
Confusing as this appears , Nolan seems to have misled Merritt, this gambit succeeding
in getting the men to the job on the 28th, and some of them , apparently those
needed, went to work.
Stopping now to make findings with 'respect to the allegations concerning the
Committee , we have seen that the negotiations looking to the return of the men
to work were thus undertaken by the union members themselves and without the
presence of 318's officials . The operators held their own meeting, did not even
attend the regular union meeting, and proceeded through- their own spokesmen
whom they selected to make an inquiry on the evening of the 25th and then through
representatives whom they selected to meet in person with company representatives
the following morning. The testimony concerning the events immediately after
September 25 indicates that the spokesmen were designated to handle for the members
the question and the details concerning their return to work. They were appointed
to negotiate what the men declared to be a very important term and condition of
employment : whether Aldridge would work. This had become the concern of
318 and its members even though they were employed on another site, and their
protests against Aldridge included such conditions of work as the machine he
operated , the machines left for others to operate , assignment of overtime , and transfer
or change of machines . I find that to the extent that they were so appointed and
that they acted the spokesmen members of the group or committee of four consti-
tuted a labor organization within the meaning of the Act. Even if not authorized
to do so, they assumed additional functions of a labor organization when they
sought to protect the members against Prince also.
030849-62-vol. 134-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, the strikers' argument that Medley allegedly failed to persuade the
men to return to work and "washed (his) hands" of the whole thing, and that
they then held their own separate meeting would lead to the conclusion that they
had no other representative than the Committee for immediate negotiation with
the Company. That the four were not formally elected and could presumably be
replaced made them no less the negotiating representative as long as they did serve.
It may well be that others might as readily have been selected to speak for
those who met in the voting room. But the casual manner in which the selections
were made does not negate the fact of selection. Whatever led to their designation,
these four were the representatives and constituted a "delegation" (to borrow a
term from counsel for 318) even if only ad hoc. As'such representatives they con-
stituted pro tanto if only pro tempore a representative group or committee; and,
considering their purpose and function, a labor organization within the meaning of
the Act.
It is of some interest that when employee Boyd called Knupp on Saturday
evening, September 26, and asked about the meeting that morning, Knupp said,
" `We are going to work Monday morning'-and that was that." Even if the phrase
last quoted was not included in what Knupp said to Boyd, details of the discussion
were not submitted to Boyd or to three other men whom he or Knupp told that
the men were all going back on Monday. Further in this connection, we must
remember that, after the Committee met with Potashnick on September 26, Nolan
arranged generally for the men to return to the job on the 28th. The Committee
spoke for the men, who then acted on its recommendation. Not only was it the
Committee's function to represent the employees vis-a-vis the employer in a matter
which so concerned their terms and conditions of employment, but they now under-
took to and did make and announce the decision. Thus again the method of the
Committee's selection, even if "at random," is irrelevant to the question whether it
functioned as the employees' committee and constituted a labor organization.
Nor does it affect the status of the Committee as a labor organization that it
has not functioned except in connection with the September 26 meeting. It has
existed and functioned, and if in such functioning it violated the Act, such violation
is to be found-again regardless whether the Committee has formally been con-
tinued or discontinued. We do not here impose a requirement of any given amount
of activity as a requisite to a finding of labor organization. The Act sets no minimum;
were there such, we could be faced with a series of changing committees, none of
which reached the fixed minimum, while grievances, disputes, or conditions of
work were dealt with within the statutory definition but yet without recourse or
remedy as provided in the Act. The Committee was authorized by members of 318
to take action on their behalf which 318 could have taken directly. The latter's
failure so to act does not make the Committee's acts less representative.
This detailed consideration of the Committee, its role and status, should meet any
arguments submitted against the finding that it is a labor organization. Further
evidence of the Committee's status as viewed by Potashnick, its actual functioning,
and its accomplishment of 318's task in getting the men back to work after Aldridge
left Lick Creek is seen in Spell's testimony that on September 30 he suggested that
Jones, as a member of the Committee, go from Goreville to Lick Creek to see what
the trouble was there, and that Jones and Nolan return and get the Committee to
straighten things out; and that Jones left and, returning later, told him that Aldridge
had gone home and the men were ready to go to work at Goreville.
Although the purpose of the testimony is not clear, perhaps an attempt to divert
responsibility from the Committee to the employees or to Potashnick, references
were made to alleged, offers by Spell or Garms on September 25 and 26, which the
men were willing to accept as an inducement to return to work, but which, the
Company withdrew. These have been considered supra. But it is clear that Spell
made no offer at all, that both on September 14 and on the 26th Garms said that the
authority lay with Shelton, and that at no time did Garms agree to shut Aldridge's
machine down for any time other than September 15. As for the number of ma-
chines which might be shut down, while it was claimed that Garms referred to
operation of the dozer (Prince's machine) as being of no use to the Company if
the rig (Aldridge's) was shut down, it was otherwise testified even on behalf of the
Committee that 'Garms spoke of shutting down 'the -rig, only, and as late as', the eve-
ning of September 25 the operators were told that only one machine was to be shut
down, the rig.
Nolan told us that the men had agreed to return to work if only Aldridge's
machine were shut down; at most, Garms allegedly said that he would then have
no use for the dozer, not that the dozer could not or would not ran. Thereafter
while it was said and repeated that the men did not insist that the dozer be shut
down , it was simultaneously and as clearly testified that the men now refused to
PORTER-DE WITTE CONSTRUCTION CO., INC. 995
work if the dozer were operated, because Garms had agreed to shut both machines
down!
Here are reference to an offer which was never made, and an explanation for the
men's refusal to work while either the rig or the dozer was being operated, which
I cannot and do not credit. One credible aspect of Jones' testimony is his statement
that he could not "get straightened out" something which was said about Shelton, this,
from the testimony of others, being Garms' disclaimer- of authority to make any
binding or permanent arrangement and his declaration that such authority in that
instance lay with Shelton. That could hardly be "straightened out" with testimony
concerning an offer by Garms and alleged reliance thereon and insistence by the
operators that both the rig and dozer be shut down. Consistent with the operators'
refusal to work unless both machines were shut down is Garms' testimony that one
of the four representatives at the September 26 meeting suggested this, not he
himself, and that he said that he could not do that and referred to Shelton's authority.
The analysis of the testimony concerning the alleged offer by Garms is more im-
portant for the additional light which it casts on the credibility of various witnesses.
With respect to the question of violation, the strikers' willingness to return as de-
clared by their representatives, whether the Committee or 318, such willingness
itself being based on the condition of discrimination against Aldridge, would not
exculpate either 318 or the Committee from the violations committed. In fact the
Committee 's claim , reliance, and insistence - on Garms' "offer" is itself an unlawful
attempt to cause Potashnick to discriminate. Whether or not that offer encompassed
the dozer also, the refusal to work with its operator, Prince, is a violation of Section
8(b)(2) (violation of Section 8(b)(1) (A ) is not alleged against the Committee)
with respect to him.
As for 318's responsibility for this informal gemot, it is clear that the Union con-
tinued to represent the men even after Medley declared his figurative ablution on
September 25. We recall that, when the Committee met with Potashnick on
September 26, it charged that Aldridge had violated the contract, which had been
entered into by 318: the Committee, representing the men, not 318, as brought out
by counsel for the latter, was here temporarily carrying on for the representative
which had for the time being stepped aside, as when a deal is turned over to another
salesman . Local 318 's overall interest and responsibility will be further considered
infra.
Turning the calendar back and focusing our attention briefly on Prince, the re-
liable testimony (excluding Prince's ) is that Potashnick first discriminated against
him on September 16, when according to Cook, in reply to Prince's question whether
he could go ahead and operate his dozer, Cook said that the situation had gotten
pretty involved and he did not want to do anything which might interfere with the
bulk of the operators returning to work. While Cook could and would have em-
ployed both Aldridge and Prince at this time, he was persuaded by the action of the
strikers not to employ either , thus discriminating against the two in violation of the
Act. However this was involved with the Aldridge situation in Cook's mind, we do
not have testimony that 318 at this time took or had taken a stand with respect to
Prince; so that with respect to the latter and for the time being, Potashnick was the
sole violator . Whether for a time at least and for how long Prince could have
worked while Aldridge's rig was down, we do not know. The later insistence which
we have noted that the dozer be shut down suggests that Prince could have been em-
ployed even if Aldridge 's work was not being done , thus removing the question of
whether 318 is liable for setting the events in motion and thereby indirectly causing
the discrimination - against him . Neither does the evidence show whether Potashnick
discriminated against Prince on September,14 •and 15.
Prince, who had worked at Bradshaw Creek for a few weeks , took his machine
to Lick Creek on September 12 as directed, and worked at the latter place that day.
This transfer was presumably objectionable to 318 for the same reason which
Medley had cited in Aldridge's case : Men were not to be transferred, but were to
be terminated and cleared for the new job. But in the absence of evidence, as
noted , that 318 at this time expressed objection to Prince 's employment , its liability
runs from September 26.
. As for any attempt to make this a,quarrel between the other employees and
Prince rather than, between 318 and Prince (as is noted with respect to Aldridge,
infra), Spell asked Nolan on October 16 for approval for Prince to operate the dozer;
the next day, Nolan told Spell that he had talked to the men and they had objected
because Prince had sided with Aldridge. Whether and when Nolan had actually
talked to "the men," we do not know; nor how many had thus objected. As in
Aldridge's case, the objection to Prince was in fact 318's, based on its insistence on
clearing men before they were transferred. According to Nolan, the men had no
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance against Prince; they refused to work with him only because of the alleged
promise (which Garms had not made) to shut the dozer down.
Work was resumed at Goreville on September 28. Cook telephoned Belcher on
the 29th and told him to report to Lick Creek the next day. On the 30th Cook told
Aldridge to fire up his machine; he would later tell him what to do. Omitting
statements which have no probative value, we do have Cook's uncontradicted testi-
mony that Best, 318's recording secretary, said that Cook "could stop all of the diffi-
culties and all the trouble . . . by just getting rid of Mr. Aldridge"; and that Cook
"was keeping some 30 to 40 men from working because of the fact that (he) would
not get rid of Tommy (Aldridge)." After more talk with the men, Cook called his
superiors, who directed him to start both Aldridge's and Prince's machines. But he
explained that this was not advisable in view of the men's temper, and it was agreed
that it was best not to put Aldridge and Prince to work under the circumstances.
Despite the reasons and any extenuating circumstances, Section 8(a)(3) and (1)
of the Act were again violated as employment was here again denied to Aldridge
and Prince. Best's remarks constituted further violation of Section 8(b) (2) by
318 as against Aldridge. Since that time Potashnick has employed men from the
Goreville job to operate at Lick Creek machines somewhat similar to those which
Cook had planned to have Aldridge and Prince operate, and which they would have
operated, we are told, but for the discrimination against them.
The General Counsel vigorously maintains that 318 is responsible for the unlaw-
ful concerted activities of the employees and its representatives on these jobs and
for the violations by the Committee; 318 as vigorously maintains that it is not. Since
this is a continuing and apt to be repeated situation and in view of the mass of testi-
mony received pro and con on the issue of authority and control exercised by 318
over members and nonmembers working on jobs throughout its jurisdiction, a find-
ing of its responsibility for the work stoppages should be made even if it does not
add to the immediate remedy for the violations found earlier.
Directly indicative of 318's place in the picture is Cook's testimony that on Sep-
tember 12 Quint said that Medley had told him not to let Aldridge come to work
on the Lick Creek job; and his further testimony concerning Best's advice on
September 30 to get rid of Aldridge. (We recall that Best was among the small
group which walked off the job when Aldridge got into the crane on September 14.)
With a no-strike, no-work stoppage obligation under its contract, 318 could be
expected to take strong action to prevent the stoppage and then to punish those who
were guilty of it. That 318 took no effective measures against these members who
violated its contract although it protested to Potashnick and attempted to prevent
it from exercising its employment prerogative establishes its liability for the acts
of its members as well as the acts of its authorized representatives.
Quite conveniently Medley did not know as late as September 14 why the men
would not work with Aldridge; how then could he do anything about it before they
walked out on that day? Both he and Quint had heard rumors of dissatisfaction,
but these were "just rumors." Even as late as September 14, when he called Medley
and told him of the walkout, Quint did not tell him the why of it, and Medley con-
tinued in ignorance. Medley could not really ask Quint why since the latter hung
up on-him! The indicated relationship between the steward and the business agent
who appointed him makes most unlikely any hanging up by Quint. The testimony
by both at this point I regard as a too obvious attempt to show the employees' inde-
pendence of action. It certainly does not explain Medley's failure to act earlier
at that, time, or subsequently against the striking violators of 318's contract. In
fact, forgetting that he had told Potashnick's representatives on September 14 what
the men had against Aldridge, including the charge that he did not live up to the
contract, Medley later extended the period of his alleged innocence or ignorance
by testifying that he learned of this aspect of Aldridge's recalcitrance on September
15 for the first time.
As early as'a week or two before August 21 Medley admittedly heard several men
say that there would be trouble if Aldridge moved to Lick Creek. To explain his
failure. to take steps in that connection, he testified that "when they told (him) this
(he) kind of shrugged it off. (He) didn't think they meant anything about it."
Yet on August 21 he spoke to Spell about this and, attempting to cause discrimina-
tion against Aldridge, "told (Spell) as a superintendent he could assign and reassign
men as he sees fit." Aside from the inconsistency concerning his evaluation of and
reaction to the alleged statements, it is clear that, if there was any dissatisfaction
among the men , Medley claimed early knowledge of it.
Maintaining that any objection to Aldridge was the men's and not 318's, Medley
told Potashnick's representatives at the meeting on September 14, as we have seen,
that Aldridge had antagonized the men by his violation of union rules; presumably
even such violations did not antagonize or otherwise offend Medley . Not disciplin-
PORTER -DE WITTE CONSTRUCTION CO., INC. 997
ing the employees for their refusal to work, Medley completed this incredible por-
trayal of tolerance of both violating and recalcitrant members and nonmembers
by saying that he would call the men and ask them to return despite Aldridge's
presence on the job.
Cook testified that about 1 p.m. on September 12 Quint, who was then on his way
to Lick Creek, told him that Medley had said that the men did not want to work
with Aldridge. But this self-serving statement by the steward does not remove 318
as the moving or responsible factor in the stoppage. On the contrary, the objection
here expressed was Medley's even if allegedly made on behalf of "the men," and
318 was thus attempting to cause Potashnick to discriminate. Medley himself told
Garms on September 14 that "it looked like the only way (they) could get back to
work was get rid of Aldridge. . He didn't think, it didn't look like the men
could get along with Aldridge." As for the men refusing to work with Aldridge, all
but one (Belcher) of the union members who were involved in the' strike were not
and would not have been working with Aldridge. Spell, at Goreville, learned of the
trouble before Cook, at Lick Creek, where Aldridge was. Further, 1 credit Cook's
testimony that Aldridge "had the goodwill of the men, they liked him personally
and professionally. They liked to work around Tommy's rig." Also bearing on
the existence and extent of the other employees' objections to Aldridge, so great
that they struck, is Grisham's testimony that not until the week of September 21
did he learn what the objections were.
But we need not speculate whether Aldridge was considered troublesome or
offensive because he insisted on his rights and especially his right to work on the
Lick Creek job. Even if the men had themselves objected to him, it is clear from
Quint's report to Cook of what Medley had told him that Medley was spearheading,
as he did at various times, the objections to Aldridge. Nor was Quint truthful when,
having come over from Goreville on September 12, he told Cook that he did not
know what was going on: "We are just not working."
Neither Medley nor anyone else explained the alleged antipathy of the large
group of men who were to have worked several miles away, their spontaneous
refusal to work, and their march on Lick Creek. Here indeed were 40 refusing to
work because of 1 man on another job several miles off. Local 318's responsibility
for the action of the strikers is apparent in all of this and from the remarks of
Medley, among others, on September 14 and before. Local 318 violated the Act
by its authorized representatives when they spoke for themselves; by its representa-
tives when they undertook to speak for the employees; by the acts of the employees
which it prompted and which it did not disavow; and by the acts of the Committee
which it permitted to function and which did function temporarily, in a manner
consistent with 318's own action.
Insofar as the finding is based on the attempt to speak for the employees, a repre-
sentative's statement or warning of what its men would do is no less an attempt
to cause discrimination than if in terms a warning by the representative itself. To
take but one instance, Medley spoke for the strikers when he told Garms on the
morning of September 14 that the men were "dissatisfied" with Aldridge and refused
to work. If Medley's sole desire was to know who was working and where, he already
knew on that day of Aldridge's employment at Lick Creek and he could tell Potash-
nick of what he mistakenly claimed was a violation of the contract. But here, immedi-
ately after mentioning the operators' alleged dissatisfaction with Aldridge, he con-
nected it with Potashnick's alleged breach of contract. (Medley later explained
that he pointed out the termination clause because he felt that Potashnick had
violated it as to everybody who worked on that project. Yet the insistence was
that Aldridge be discharged.) If this had any meaning, it was that Aldridge should
be discharged, thus disposing of the men's dissatisfaction, never really proved, and
the Company's breach, itself nonexistent.
To say that a union is not connected with and responsible for employees' refusal
to work under the circumstances here existing when its steward on the job and its
business agent warn the employer in advance that the men will walk off and when
the latter do in fact then in a body walk off; to say that the refusal to work, as
here, is only the expression of the employees and not of their representative union
is to ignore reality 18 For whatever reason, Aldridge was -persona non grata with
318, and its representatives sought to prevent his further employment. The testi-
mony offered by 318 is wholly inadequate To the extent that it denies or contra-
dicts the evidence of violative statements by its representatives, I do not credit it.
No more reliable are the attempts to show that 318 is not responsible for the
work stoppages.
is Cf The Englander Company, Inc, 108 NLRB 38, 39
998 DECISIONS OF NATIONAL LABOR RELATIONS BOAR],
We have seen that the strikers' own alleged refusal to "work with" Aldridge does
not explain action which was taken at the Goreville project. We have seen also the
direct violations by 318 and its representatives. As for any alleged attempt by
318 to get the men back to work, what was done can scarcely be called such an
attempt. No more strenuous than the effort at the meetings on September 19 and 22
were Medley's other efforts even before he washed his hands of the whole affair.
Thus Quint most uncertainly testified that he thought that Medley had called him
before September 18 to tell him to go back to work. Medley's "order" (this was
counsel's characterization) was, "You boys ought to go back to work." Actually
Medley gave no order'to return to'work: (Nor did he, when he undertook to relieve
Quint as steward, ask him to return to work.)
As for Quint, his contribution included telling Spell on September 12 that the
men were riled up at Aldridge; telling a few of the men that the others were not
going to work with Aldridge, as he got into a truck and went to Lick Creek an
the morning of September 14 (this "encouragement" to work helps us to evaluate
Quint's alleged statement later to the men at Lick Creek that they ought to go back
to work); and himself walking off the job, his explanation at the hearing being
that he could not do the job by himself.
We recall also that Grisham told Pulliam on September 13 that he had appointed
Leroy Lawrence steward on the Porter job. With Lawrence's statement to Pulliam
in employee Rosson's presence on September 21, "We have decided not to work
any more until this thing is settled," 318's responsibility for the refusal to work is
thus further evidenced, as it was the day before when Lawrence called Street and
told him that Lawrence or someone else "wondered if we shouldn't lay off from
work until that thing was settled"; they "left it in that manner, with the decision
in (Street's) mind that (they) wouldn't work that Monday."
Whatever, the violations by 318 and Porter as against „the' latter's employees,
infra, the work stoppage on September 14 arose out of the dispute with Potashnick
over Aldridge's employment. The stoppage was now, on the 20th and 21st, extended
to Porter "until this (Potashnick dispute was) settled." No dispute was indicated
with Porter. Here was action against the secondary employer, Porter, in an at-
tempt to bring pressure on Potashnick, in violation of Section 8(b) (4) (A) of the Act.
The strikers' alleged objections to Aldridge were 318's own; and the dispute con-
cerning the transfer of Aldridge from one job to another was between Potashnick
and 318. Here we must bear in mind the suggestions that temporary employment be
given to Aldridge (and to Prince) and that he then be fired. (Having left certain
violative aspects behind, it is necessary to recall them for a complete picture of the
entire situation.) The acts of the strikers were cited to Potashnick by 318 in advance
and then again later; they supplemented the violations by 318's authorized
representatives.
We are asked to believe that, when the men struck in violation of 318's contract,
as Medley allegedly told them they were doing, he meekly urged, as Quint related it,
that "we better go back to work, we was in violation of our contract." Elsewhere
it was testified that -Medley no more than suggested or advised (as in the statement
which the attorney prepared) that the men return to work. Admitting that his mem-
bers were insubordinate and acted in violation of the contract, Medley testified that
he did not tell them that they would be disciplined although he allegedly instructed
Grisham to warn them that action might be taken against them. When such instruc-
tion was given we do not know. Nor has Grisham told us whether he passed the word
on to the men . We have already noted the meetings of September 19 and 22, and
what was said there.
If the evidence and analysis to this point are not convincing, whose show of
strength was this, the employees' or 318's? Certainly there is no direct and reliable
testimony that personal animosity toward Aldridge imbued the various men on the
Goreville project. Which of them prompted the general stoppage we do not know; all
is lost in anonymity. The entire story concerning personal antipathy toward Aldridge
as the reason for the walkout has a hollow ring. Medley identified only three men
who allegedly were opposed to Aldridge working on the Lick Creek job, one of them
,being named by 318 to work on Aldridge's rig. Witness after witness referred to
"the men" who would not work with,-,Aldridge while each for himself denied that
he felt so. Yet somehow the unnamed and uncounted ones prevailed to the extent
that all of 318's members and all operators on both jobs walked off, except the
discriminatees here.
The names of Caraker and Crane having been mentioned early in the hearing in
connection with Aldridge's statement on September 12 that he was ready to go to
work (the one to operate Aldridge's machine, the second if the first did not), Quint
testified that these two, employee Morris, and "more" had complained about
Aldridge. Quint had heard rumors about Aldridge about 2 weeks before September
PORTER-DE WITTE CONSTRUCTION CO., INC. 999
12, but he had not said anything to him about these rumors or the alleged com-
plaints (any more than he had to Medley) since they were "just rumors." Although
these were just rumors, and he thus tried to protect Medley by testifying that he had
not told him of the rumors, Quint did tell Spell on the morning of September 12 that
he thought that the men would walk off if Aldridge worked. (We have already noted
that earlier in that conversation Quint told Spell that Medley had said that Aldridge
was not to be permitted to work at Lick Creek.) On the issue of Quint's credibility
more than on the facts since 318 had no right to assign one man in preference to
another who, had already been engaged by Potashnick, we now note that Quint did
not even in September speak to Aldridge about the alleged complaints.
Strangely, neither Caraker nor Crane was among the group which walked off when
Aldridge got into his machine on September 14. Nor does it appear that either of
them had prompted those who did walk off. Conversely, there is no evidence by
those who at that time refused to work with Aldridge (this refusal was alleged and
discussed by Medley and Grisham at the meeting with Garms on September 14) that
they were personally displeased with him or had in fact complained about him. We
are asked to believe not only that all refused to work with Aldridge, even those whose
jobs were remote from Aldridge; but that the refusals were simultaneous. No one,
two, or five were responsible; this spontaneous action, like the voluntary contribu-
tions, was unanimous. (One man appears to have offered to work on September 15,
but Spell needed more than one, and could not use him.) This is not to say that
Caraker and Crane may not have wanted Aldridge off the job. But the concerted
stoppage by all of the men is not connected with them, nor is it claimed that the men
struck in sympathy with them: the stoppage is ascribable to 318, which, while
alleging the men's objection to Aldridge, admitted and voiced to Potashnick its
own objection.
In short, there is no testimony of such personal feelings among the men as would
suggest the sustained collective action taken as the independent action of the em-
ployees. On the other hand, we are asked to believe that the Union which enforced
a limited hiring practice and the regular payment of fees from every employee,
members and nonmembers alike, asked the men to go back to work but figuratively
threw up its hands when they refused. I do not accept this picture of a powerless
union and of Medley, quite bold toward Potashnick and in a reference to the Board,
as a weak and helpless business agent overridden by his members and by nonmem-
bers, some of whom wanted to be admitted into the Union. To the contrary I find
that the reason for the refusals to work and 318's connection with them are to be
found in Medley's statement to Spell that Aldridge had been sent out to work at
Bradshaw Creek for a short time only; he had been there all summer; and he had not
been cleared 19 by 318 for work at Lick Creek. All employees on jobs within 318's
jurisdiction are members of or are cleared by 318. All recognize 318's imprimatur.
Where this is withheld, there arises the "uncleared," supplanting the Biblical unclean.
Having carefully maintained this doctrine, whatever the alleged purpose, 318 cannot
avoid responsibility for the acts of its faithful-'followers.. If we are. to consider "the
humor of the crowd" as indicative of the men's attitude toward Aldridge, we must
bear in mind that the record shows that Medley's objection to Aldridge preceded any
evidence of the men's attitude and that there is clear basis for the inference that the
latter stemmed from if it was not prompted by the former.
The recognition which the Act accords to the right of employees to engage in
concerted activities imposes upon their representatives the concomitant obligation
not to cause or attempt to cause employers to discriminate, and not to violate the
Act in other respects. That obligation has been violated by 318 and, to a lesser
extent, by the informally designated Committee. I am unable to separate 318 from
the pressure on Potashnick brought by the Union's officials and stewards, not to
mention its members acting in concert and without exception; and I find that 318
attempted to cause and did cause Potashnick to discriminate, in violation of Section
8(b)(2) of the Act.
Connected with clearance and working dues is the allegation that Grisham told
Ewers that he had to pay to keep his job. Ewers was employed by Porter at Lick
Creek on or about August 25, 1959. We recall Grisham's statement, supra, to Ewers -
on September 11 that he had cleared Ewers but that it would cost him $2.50 per
week. Grisham also said that it was customary to sign a card (Grisham apparently
19 Although in marked contrast to the refreshingly simple proof of the Union 's refusal
to clear an employee for employment and of its threat to picket, as described in the recent
Intermediate Report in Operating Engineers, Local 101 (John F Beasley Construction
Company), IR-89, May 18, 1960, the evidence here as definitely proves the violation with
respect to clearance and 318's connection with the refusal to work, here no mere threat
Our problem in the instant case has been to cut through the sham
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not know that Ewers had already signed a card; Grisham did not refer to it), and
Ewers thereupon signed without reading although he evidently understood that he was
obligating himself to make weekly payments while thus employed, and gave Grisham
$10 for 4 weeks. (The card was not filled in when Ewers signed it.) Ewers did not
thereby become a member of 318, and he never received a membership card, the $10
being so-called service fees. At Quint's request, Ewers had signed a card on August
28, but made no payment at that time. Grisham's statement, connecting his clearance
of Ewers with the requirement that payments be made, and the further statement
that he would not clear Lawrence or Gist, constituted unlawful coercion within the
meaning of Section 8(b)(1)(A), no less so because Ewers was already working.
Local 318 produced only the August 28 card; the second was not needed. But it is
agreed that Grisham and Ewers had some conversation concerning a permit card on
September 11.
Grisham's version of his conversation with Ewers included only his alleged ques-
tion whether Ewers had seen one of the cards, and the reply that Ewers had already
signed one; he denied that Ewers signed a card for him. But Grisham denied also
that he collected any money from Ewers (Grisham was perhaps uninterested in
maintaining that unanimity of payments which we have noted?), but then, when
asked about a check, undertook to explain that Ewers "wrote a check" to 318 and
asked if Grisham would take it into the office for him; Grisham did not "collect it."
Grisham did not remember who filled the check out, until it was shown to him, when
he recalled that he did it at Ewers' request, the latter then signing it. Grisham's
recollection of the events was here again poor, and I do not believe that he merely
asked whether Ewers had seen the card. I credit Ewers' testimony concerning their
conversation.
We have already seen that an unlawful hiring practice was maintained by Porter
and 318. We come now to consideration of allegations of violation by them against
employees Claude Lawrence and Gist specifically. On August 17 Pulliam called
Medley, who said that he had been expecting the call. Pulliam said that he would
like to get three men clear, the crushing plant operator, the oiler, and the shovel
operator. These were Scott, Claude Lawrence, and Gist, although identified to
Medley only by job apparently. Medley at first replied that he could not clear them,
but when Pulliam explained how difficult it would be for him to assemble the crushing
plant since he had not been present when it was disassembled, Medley said that
Pulliam could bring in the plant operator and oiler for the time needed to set the
crusher up; as for the shovel operator, Medley told Pulliam to call Medley when the
shovel came in . (We need not concern ourselves with a possibly confirmatory con-
versation between Quint and Merritt, Potashnick foreman.) He also stated that he
had men who would be available after Pulliam had the plant assembled. To this
point, despite the violation of Section 8(b)(2) of the Act, no loss was occasioned
the three employees since the first two were permitted to come on the job, and the
services of the third were not yet needed. But the incipient attempt to cause
discrimination was later manifest as actual objection was made to their employment.
As for discrimination by Porter, the beginning of that is evident in Pulliam's
request to Medley and in his statement to Spell later on August 17 that he had not
gotten along with 318 "too well, that (he) did get approval to bring in two men to
set up the crusher." On August 18 Pulliam called 318 for a dozer operator and,
not having been sent one, went to the union hall in Harrisburg, Illinois, the follow-
ing day. There Medley told him that he must have had one since he had himself
received a call from Lick Creek and had been informed that the dozer was working
or had been moved. (This and their conversation the day before cast further light
on the close control which Medley kept, both for its bearing on the issue of clear-
ance and for his alleged remoteness or ignorance of what was occurring on the job.)
Later that morning, a bulldozer operator showed up at Lick Creek. Pulliam also
asked Grisham for approval to bring Gist in so that he could be ready to unload
the shovel when it arrived, but Grisham replied, as Medley did to Spell, that they
could not do that; Pulliam would have to call them when the shovel arrived.
(Porter nevertheless put Gist on the payroll when he arrived at Lick Creek on
August 28 Pulliam had him trying to locate the shovel, which came in on Septem-
ber 2 or 3.)
On August 20, Pulliam called Medley and asked whether Porter "could bring a
welder (Ewers, supra) in from a Missouri job." Medley said that he had a welder,
but gave Pulliam "permission" when the latter explained the nature of the work to
be done. Similar involvement and union control were shown with respect to a high-
lift operator, and when it became apparent that Leroy Lawrence, the man sent out
by 318 was not qualified, another suggested a change of jobs "if it was all right with
the steward." (This last is not charged to 318.)
PORTER-DE WITTE CONSTRUCTION CO., INC. 1001
On August 29, Quint approached Pulliam and asked how long he intended to keep
the Missouri men on the job, the reference being to Claude Lawrence, Gist, Scott,
and Ewers. When Pulliam replied, "Until (he) got the plant operating and making
specifications," Quint observed that Medley had told him "that was the agreement."
Thereafter, on September 3, Pulliam called Medley and asked for an oiler for
the shovel. Medley replied that he knew the shovel had come in, and added that
Pulliam needed a shovel operator also. Although Pulliam protested that he had an
operator, Medley said that he would send both an oiler and an operator. Admit-
tedly Pulliam had told Medley in August that he had a shovel operator and asked
"if it was O.K." According to Medley, he replied that he had no objection; yet
pointed out that it was premature or unnecessary to talk about an operator if the
shovel was not in, and suggested that Pulliam call the union office for a shovel
operator (not for clearance of Pulliam's man), when the shovel arrived. The shovel,
on September 3, was on a railroad siding at Goreville, and after speaking with
Medley, Pulliam found at the siding Street and Berry, operator and oiler, who told
him that they had been sent out by 318 to run the shovel. Pulliam put them both
to work, and the two, with Gist, unloaded the shovel and moved it to Lick Creek.
Thereafter Street operated the shovel while Gist helped make repairs and lined up
and listed repair parts. Gist, employed by Porter for more than 20 years, had been
summoned by it to Lick Creek despite 318's refusal to clear the shovel operator
before the shovel arrived. He went on the payroll there on August 28, as already
noted.
Claude Lawrence went to work for Porter at Lick Creek in August 1959, having
been called there by Pulliam and told that 318 had cleared him. Quint asked
Lawrence and Scott what they were doing and, when they replied that they were
setting up the crushing plant, he replied that no one had told him about it. They
told him that Pulliam said they had been cleared to-set up the plant, and Quint then
said that he would call the union hall to find out. After Medley's temporary ap-
proval of Claude Lawrence, 318's control and clearance procedure were further
exemplified when on September 9 and 10 it sent another oiler, Ewell; Pulliam had.
not asked for an oiler, but now told Lawrence to brief Ewell on the crusher plant
so that he could do that work. Lawrence instructed Ewell and then helped Pulliam
with other tasks since the latter had no need for both men as oilers. When Pulliam
complained to Grisham on September 11 concerning the oilers "changing places
without telling (him) about it" (referring to Berry and Ewell), Grisham replied
that Pulliam "would have to work it out with the boys" although 318 had sent both
oilers out and one of them had not been needed, requested, or wanted.
If it be violative of Section 8(b)(1)(A) and (2) for a union to refuse to refer a
job applicant (and for an employer therefore to refuse to employ him),20 a fortiori
the same sections are violated when a union causes replacement of one employee by
another.21 Medley's statement that he would send a shovel operator to the job
when Porter already had one, and his acts in sending the shovel operator and an
oiler for the crusher "can (and did) exert as much pressure in bringing about the
Company's illegal conduct (in terminating the employment of Gist and Lawrence)
as could be exerted by (a) practice o r agreement.. "22 That 318 held an effec-
tive whip had already been demonstrated, and the "suggestion by (Medley) was
virtually tantamount to a demand." 23 Here Medley's statements were followed
by appearance of men from the Union, who were then put to work. The following
language from a recent case 24 is also in point:
Accordingly, in view of the above testimony, . . . including the evidence which
clearly discloses that Cabuzzi knew there was only one job available when he
insisted upon sending an additional employee over for the job which had
already been assigned to Ianuzzi, . we find . that the Respondent caused
lanuzzi's discharge, in violation of Section 8(b) (1) (A) and (2) of the Act. . . .
Formulation of a demand that one man replace another need not be in haec verba
or according to any ritual or formula. Having caused Porter to remove Gist from
20 Cf N L R B. v United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
et at (Merritt-Chapman & Scott Corporation), 259 F 2d 741 (CA 7)
21 As with respect to Aldridge and Prince, it is not alleged that the evidence with re-
spect to Gist and Lawrence constitutes it violation of Section 8(b) (1) (A).
22 Local 592, United Assn of Journeymen & Apprentices, etc (Schenley Distillers, Inc ),
277 F 2d 56 (C.A 7) See also Turner Construction Company, 110 NLRB 1560
2-'Northwestern Montana District Council of Carpenters' Unions et al (Glacier Park
Company), 126 NLRB 889
24 Local 20 , Bakerii and Confectionery Workers International Union of America (Berwick
Cake Company), 126 NLRB 22
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shovel and replace him with Street, 318 did not thereafter object when Gist (as
was Lawrence ) was assigned to other work . This latter does not lessen the prior
violation, even if it does the remedy . As in the case last cited, it was here clear that
only one job was available for a shovel operator as for an oiler for the crushing
plant, and that Medley nevertheless sent additional men for these jobs.
Despite the refusals to clear Gist and Claude Lawrence, and the sending of other
men to the project to do their work , these being the attempts to cause Porter to
discriminate against them, the work stoppages which began on September 14 and 21
were not directed against these two but against Aldridge pnmarlly. But the over-
loading of men finally led Pulliam to take Gist off the payroll. The earlier vio-
lations with respect to Gist now led to loss of pay , and he must be made whole
for loss thus sustained . September 19 was his last day on the payroll . (Reference
was also made to September 30 as the date when Pulliam spoke to Gist about taking
him off the payroll , but regardless of conversation , discrimination was expressed
in the termination of his employment . Operations were effectively shut down be-
tween the two dates, but to insure completeness of remedy the earlier date will be
used for backpay purposes .) Porter's work was ended on December 10, so that
Gist is to be made whole for any loss sustained between September 19 and
December 10.
Similarly as to Claude Lawrence , Pulliam testified that , since he had no need for
two oilers and 318 had refused to clear Lawrence but had sent Ewell out to do that
work, he had assigned Lawrence to helping supervise and haul . He could not keep
Lawrence on as an oiler , and finally laid him off . Whether Lawrence worked after
September 19 is not clear ; he will be made whole for any loss sustained between that
date and December 10.
On November 10, 1959, 318 's attorneys wrote as follows to Aldridge and to
Prince, with copies to Potashnick:
This law firm represents Local 318, International Union of Operating
Engineers , AFL-CIO.
We wish to state on behalf of our client , Local 318, that at no time has
Local 318 objected to your, employment by the R. B. Potashnick Company in
any capacity , on any of its projects. Local 318 has never objected to your
employment by the said firm, nor does it now object to any such employment.
A copy of this letter is also being sent to the R. B. Potashnick Company
this date.
A similar letter was on the same date sent to Gist, with Porter's name substituted
for Potashnick's.
To the extent that the letters refer to previous action and attitude , they are self-
serving and do not overcome the evidence of violation which has been noted. Nor,
maintaining and indicating no more than a continuance of the earlier attitude, do
the letters show any contrary stand for the future . They do not declare withdrawal
of prior objections to the employment of these men , but rather deny that there had
been such objections . The letters are only what they appear on their face to be:
denials of 318's responsibility . They do not relieve 318 of any liability found, nor
do they indicate a change which terminated that liability.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IT, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Respondents have engaged in and are engaging in certain
unfair labor practices affecting commerce , I shall recommend that they cease and
desist therefrom and take certain affirmative action to effectuate the policies of the
Act.
It has been found that the Respondents Porter, Potashnick , and 318 have violated
Section 8 ( a)(3) and ( 1) and (8)(b) (2) of the Act by maintaining and enforcing
an unlawful hiring practice or arrangement . I shall therefore recommend that they
cease and desist therefrom.
It has been further found that Potashnick, by terminating the employment of
Aldridge and Prince , and Porter , by terminating the employment of Claude Law-
rence and Gist, discriminated against them in regard to their hire and tenure of em-
ployment in violation of Section 8 ( a) (3) and (1); and that 318 caused and attempted
to cause the employers so to discriminate , and that the Committee caused, attempted
PORTER-DEWITTE CONSTRUCTION CO., INC. 1003
to cause, and contributed to causing, Potashnick so to discriminate in violation of
Section 8(b)(2) of the Act. I shall therefore recommend that Potashnick offer to
Aldridge and Prince immediate and full reinstatement to their former or substan-
tially equivalent positions,25 if its work at the Lick Creek project has not yet been
completed (we have seen that Porter's work was ended on December 10), without
prejudice to their seniority or other rights and privileges. Although they resisted
the attempts to cause them to discriminate, the employers succumbed, as found. I
shall therefore further recommend that Potashnick, jointly and severally with 318
and the Committee, and Porter, jointly and severally with 318, make the respective
employees whole for loss of pay sustained by reason of the discriminatory action
aforementioned, from the date of the respective discriminations, computation to be
made in the customary manner 26
Whatever the earlier violations, Aldridge worked through September 12, so that
Potashnick and 318 will jointly and severally make him whole for loss sustained from
September 14 through 26, and Potashnick jointly and severally with 318 and the
Committee will make him whole for loss sustained from September 26. As to
Prince, Potashnick alone is liable for loss of pay, if any, sustained from Septem-
ber 16 through 26; Potashnick jointly and severally with 318 and the Committee
will make him whole for loss sustained from September 26. Porter and 318 jointly
and severally will make Claude Lawrence and Gist whole for loss sustained from
September 19 through December 10. I shall further recommend that the Board order
Potashnick and Porter to make available to it upon request, payroll and other records
to facilitate the checking of the amount of backpay due.
It has been further found that 318, by indicating that employment depended on
payment to it of moneys other than dues, restrained and coerced employees in
violation of Section 8(b) (1) (A) of the Act. I shall therefore further recommend
that 318 cease and desist therefrom. I shall further recommend that 318 cease and
desist from inducing or encouraging the employees of a secondary employer to
strike in violation of Section 8(b) (4) (A) of the Act.
It is clear that it has for a. long time been 318's practice to exact permit fees or
working dues from nonmember employees on all jobs within its jurisdiction. Med-
ley attempted to explain and to justify this general practice. (For purposes of
remedy we need not rely on the earlier instance when Aldridge was similarly af-
fected as he applied for employment by another company. The events in that con-
nection apparently took place on March 13 and 14, 1959, just before our 6-month
statutory period. For whatever bearing they might have on the remedy, the com-
plaints herein are not and cannot be based on them.)
It is also clear that the practice with respect to permit fees and clearance has
been uniform and even unanimous. We should also remember in this connection
Medley's claim that a "gentlemen's agreement" 27 to clear all men before they came
on the projects and not to transfer them without further clearance affected the over-
all agreement with the contractors association and all work within 318's jurisdiction
of 14 counties in Illinois.
These elements indicate that the order against 318 should not be limited to its
acts vis-a-vis Potashnick and Porter and their employees but should recognize
the "generalized scheme" and, include the broad phrase, "or any other employer," 28
thus meeting the "proclivity for unlawful conduct (which) has been shown" 29
25 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
20 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N L R B , 311
U S. 7; F W. Woolworth Company, 90 NLRB 289, 291-294. In the case of 318 and the
Committee, the terminal dates shall be the date of a proper offer of reinstatement or the
respective dates upon which 318 and the Committee serve upon Potashnick, and upon
which 318 serves upon Porter the written notice as set forth in sections 3, b, (1) ;
4, b, (1) ; and 3, b, (2) of the recommendations hereinafter made, whichever shall first
occur.
n Aside from Medley's broad claim of general coverage of the alleged "gentlemen's agree-
ment," it must be noted that he here was making that claim in the presence of Harrison,
another contractor, who is not a party to this proceeding Cf N.L R B v. Local 111,
United Brotherhood of Carpenters & Joiners of America (Clemenzi Construction Co ),
278 F 2d 823 (CA. 1)
28 Communications Workers of America, AFL-CIO, et al. v. N L R.B , 362 U S 479.
Cf. United Association of Journeymen and Apprentices, etc., Local 8 (United Contractors
Council and William H Bishop d/b/a Bishop Plumbing and Elect. Co ), 126 NLRB 1142;
NLRB v Revere Metal Art Co , Inc, et al, 280 F. 2d 96 (C.A. 2).
20MoComb, Wage and Hour Administrator v Jacksonville Paper Company, 336 U.S.
187, 192
1004 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, the testimony, including 318's records, indicates that permit fees were
exacted from and paid by all nonmembers who worked within 318's jurisdiction,.
whether employed by Porter, Potashnick, or other employers who were members
of the contractors association; such fees being "the price these employees paid in
order to retain their jobs." The recommendation for reimbursement of permit
fees will therefore not be limited to employees here but will extend to fees paid to
318 by any and all nonmembers who are employed by employers over whom the
Board would assert jurisdiction in an appropriate proceeding.
Thus the scope of the violations calls for application of the so-called Brown-
Olds 30 remedy which the Board has generally applied. In order that the remedy
may be commensurate with the unfair labor practices found, I shall further recom-
mend that 318, Porter, and Potashnick jointly and severally reimburse ,as hereinafter
set forth all nonmember employees of Porter, Potashnick, and other employers with-
in 318's jurisdiction for all moneys illegally exacted from them, liability therefor to
begin 6 months prior to the date of the filing and service of the initial charge against
each Respondent, and to extend to all such moneys thereafter collected.
It might be argued that exaction of permit fees from nonmembers encourages,
a fortiori, membership in 318 and that the reimbursement remedy should be extended
to cover members' dues and other payments. But it must be noted that reference
to applications for membership was casual; the allegations are limited to the permit
fee practices; we have not considered membership requirements and the encourage-
ment of membership as distinguished from the requirement that permit fees be
paid; and it has not been requested that the relief extend to dues paid by members.
I thus limit the effect of the violation and the remedy of reimbursement to the
fees paid by nonmembers.
As to Porter employees, 318's liability for reimbursement of fees will be sole and
entire from March 15 through April 6, 1959, and joint and several with Porter from
April 7, the "10(b) date" as to Porter. As to Potashnick's employees, 318's liability
will be sole and entire through June 7, and joint and several with Potashnick from
June 8, the latter's "10(b) date." As to employees of other employers, such other
employers not being before us, reimbursement for permit fees paid will be made
by 318 alone for the period beginning March 15, 1959.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 318, International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. The Committee , composed of Robert V. Jones , Claude Nolan , Leroy Lawrence,
and Owen R. Knupp , is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of employees , thereby encouraging membership in
318, R . B. Potashnick and associated companies ( Potashnick ) have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
4 By interfering with, restraining, and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act, Potashnick has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act
5. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of employees , thereby encouraging membership in
318, Porter has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By interfering with , restraining , and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, Porter has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. By inducing and encouraging employees of Porter to engage in a strike where
an object thereof was to force Porter to cease doing business with Potashnick, 318
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(b) (4) (A) of the Act.
8. By causing Potashnick and Porter to discriminate in regard to hire and tenure
of employment and terms and conditions of employment in violation of Section
8(a)(3) of the Act, 318 has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b) (2) of the Act.
S0 United Association of Journeymen & Apprentices, etc, Local 231 (J S Brown-
E F Olds Plumbing & Heating Corporation), 115 NLRB 594
z
FRED L. ROBERTS 1005
9. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, 318 has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1) (A) of the Act.
10. By causing Potashnick to discriminate in regard to hire and tenure of em-
ployment and terms and conditions of employment in violation of Section 8(a)(3)
of the Act, the Committee has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b) (2) of the Act.
11. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Fred L. Roberts and Plumbers and Pipefitters Local Union
No. 350 and Sheet Metal Workers Local Union No . 26. Case
No. AO-28. December 5, 1961
ADVISORY OPINION
This is a petition filed on November 13, 1961, by Plumbers and
Pipefitters Local Union No. 350 and Sheet Metal Workers Local
Union No. 26, herein jointly called Petitioners, tinder the Board's
applicable Rules and Regulations, Series 8, requesting an advisory
opinion as to whether it would assert jurisdiction over the operations
of Fred L. Roberts, herein called the Employer. Said petition alleges
in substance that :
1. Petitioners are defendants in a suit brought against them by
the Employer in the First Judicial District Court of the State of
Nevada, in and for the County of Ormsby, Docket No. 22720. In
such suit, the Employer seeks injunctive relief and damages for pick-
eting by the Petitioners. Although the issue before the court with
respect to a preliminary injunction has become moot, the issue of
damages has been set for trial on December 14, 1961.
2. Since April 1960, the Employer has been engaged in Carson City,
Nevada, as a subcontractor in the plumbing, heating, and air-condi-
tioning business. Prior to that time, he was engaged at Fresno, Cali-
fornia, in a similar business.
3. The petition further alleges that the Employer "represents, and
for the purposes of this petition, Petitioners admit," the accuracy of
the following commerce data :
During the first quarter of 1960, while he was operating in Cali-
fornia, the Employer purchased materials valued at $38,875, approxi-
mately half of which came to him, "directly or indirectly, from out-
side that State." When he removed his business to Nevada, the
Employer took with him and transferred "approximately $T,000 worth
of these materials." During the 8-month period from April through
November 1960, the Employer purchased goods valued in excess of
$47,500, "all of which were either shipped to him directly from outside
the State of Nevada or delivered to him by Nevada suppliers who, iii
134 NLRB No. 115.