Sheet Metal Workers' Int'l Assn., Local 299, Etc.

National Labor Relations Board - Board Decisions

Dec 13, 1961

134 N.L.R.B. 1202 (N.L.R.B. 1961)

1202 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Sheet Metal Workers' International Association, Local 299,
AFL-CIO; International Brotherhood of Electrical Workers,
Local 425, AFL-CIO; United Brotherhood of Carpenters and
Joiners of America , Local Union 428, AFL-CIO; International
Brotherhood of Carpenters and Joiners of America, Mill-
wrights and Machinery Erectors Local 1369, AFL-CIO; Inter-
national Association of Bridge , Structural and Ornamental
Iron Workers, Local 549, AFL-CIO; International Union of
Operating Engineers, , Local 132, AFL-CIO;' International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, Local 789; F and International Hod Car-
riers, Building and Common Laborers ' Union of America,
Local 714, AFL-CIO and W. F. Kisner, R. M. Kisner, R. D.
Kisner, H. A. Kisner , O. C. Kisner , M. D. Kisner and B. E.
Kisner, d/b/a S. M. Kisner & Sons, a , Partnership. Cases
Nos. 6-CC-238-1, 6-CC-238-2, 6-CC-P38-3, 6-CC-9238-4, 6-CC-
P38-5, 6-CC-238-6,6-CC-238-7, and 6-CC-238-10.1 December 13,
1961
DECISION AND ORDER
On July 3, 1961, Trial Examiner William Seagle issued his Inter-
mediate Report herein, finding that the Respondent, Sheet Metal
Workers' International Association, Local 299, AFL-CIO, herein re-
ferred to as Sheet Metal Workers, engaged in unfair labor practices
and recommending that it cease and desist therefrom and take affirm-
ative action, as set forth in the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent, United Brother-
hood of Carpenters and Joiners of America, Local 428, AFL-CIO,
and the Respondent, International Brotherhood of Carpenters and
Joiners of America, Millwrights and Machinery Erectors Local 1369,
AFL-CIO, had not engaged in unfair labor practices as alleged in
the consolidated complaint and recommended that these allegations
be dismissed. Thereafter, Sheet Metal Workers and the General
Counsel filed exceptions to the Intermediate Report and briefs in
support thereof 2
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
'As indicated in the Intermediate Report, prior to the hearing , an ' Order was entered
by the Regional Director severing from this proceeding , the following cases : No. 6-CC-
238-2, No. 6-CC-238-5, No 6-CC-238-6, No. 6-CC-238-7, and No . 6-CC-238-10.
2 In the absence of exceptions , we adopt pro forma the recommendation of the Trial
Examiner that the consolidated complaint , insofar as it alleged that the Respondent,
International Brotherhood of Carpenters and Joiners of America , Millwrights and Machin-
ery Erectors Local 1369 , AFL-CIO, engaged in unfair labor practices, be dismissed.
134 NLRB No. 110.
SHEET METAL WORKERS' INT'L ASSN., LOCAL 299, ETC . 1203
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in these cases, and adopts the findings and conclusions
of the Trial Examiner, with the modification noted below a
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2 (c) read : "Notify the Regional
Director for the Sixth Region, in writing, within 10 days from the
date of this Order, what steps the Respondent, Sheet Metal Workers
Union, has taken to comply herewith." A The Board further orders
that the complaint be dismissed to the extent recommended by the
Trial Examiner.
3In adopting the Trial Examiner 's conclusions that Sheet Metal Workers induced em-
ployees of secondary persons to engage in a strike within the meaning of Section 8 ( b) (4) (1)
of the Act , and that, by such strike , the Sheet Metal Workers threatened , restrained, and
coerced secondary persons within the meaning of Section 8(b)(4)(ii ), we rely solely on the
findings of the Trial Examiner that Ted Steed induced employees of secondary persons to
engage in the strike and that , in engaging in such conduct , Steed was acting as agent of
Sheet Metal Workers. We do not rely on the Trial Examiner 's rationale that Allen Stout,
business agent of the Sheet Metal Workers , or Lloyd Mace , its financial secretary -treasurer,
ratified Steed 's conduct.
4In the notice attached to the Intermediate Report as Appendix, the words "Decision
and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner ." In the event that this Order is enforced by a decree of the 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."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The consolidated complaint charged each of the Respondents with secondary
boycott activities in violation of Section 8(b) (4) (i) and (ii ) (B) of the Act in con-
nection with the construction of an addition to the plant of the Fairmont Aluminum
Company at Fairmont, West Virginia. Prior to the hearing, however, an order was
entered severing from the complaint five of the labor organizations named as Re-
spondents . The Respondents who remain in the case as parties are Sheet Metal
Workers' International Association, Local 299, AFL-CIO ( hereinafter referred to
as the Sheet Metal Workers); United Brotherhood of Carpenters and Joiners of
America, Local Union 428, AFL-CIO (hereinafter referred to as the Carpenters);
and International Brotherhood of Carpenters and Joiners of America, Millwrights
and Machinery Erectors Local 1369, AFL-CIO ( hereinafter referred to as the
Millwrights). These three labor organizations have filed answers admitting that
they are labor organizations and that the jurisdictional allegations of the complaint
are true but denying the commission of the unfair labor practices with which they
are charged.
On April 25 and 26 , 1961 , a hearing was held before William Seagle , the duly
designated Trial Examiner , with respect to the allegations of the complaint at Fair-
mont, West Virginia. Subsequent to the hearing, counsel for the General Counsel
and for the Respondents filed briefs which I have considered.
Upon the record so made, and based upon my observation of the witnesses, -I
hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENTS
The Sheet Metal Workers, the Carpenters, and the Millwrights are labor organiza-
tions which have had members working at the Fairmont Aluminum construction
site at Fairmont, West Virginia.
1204 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE EMPLOYERS
S. M. Kisner & Sons, the primary employer in the present proceeding (hereinafter
referred to as Kistler), is a partnership, consisting of W. F. Kisner, R. M. Kisner,
R. D. Kisner, H. A. Kisner, O. C. Kisner, M. D. Kisner, and B. E. Kisner. The
partnership, which has its sole office and place of business in Fairmont, West Vir-
ginia, acts as a roofing and general sheet metal construction contractor. During the
calendar year 1960, Kisner performed services valued in excess of $50,000 directly
outside the State of West Virginia, and purchased from points directly outside the
State of West Virginia materials and goods valued in excess of $50,000.
The secondary employers involved in the present proceeding are as follows:
(a) Fairmont Aluminum Company, a West Virginia corporation, which has
its principal office in Fairmont, West Virginia, and which is engaged in the manu-
facture and sale of aluminum rolling mill products.
(b) Schurman Constructon Company, a West Virginia corporation, which has
its principal office in Huntington, West Virginia, and which is engaged in the build-
ing construction business.
(c) Pittsburgh Bridge and Iron Works, a Pennsylvaian corporation which has its
principal office in Pittsburgh, Pennsylvania, and which is engaged in the fabrication
and erection of structural steel.
(d) Stark Electric Company, a West Virginia corporation, which has its principal
office in Hungtington, West Virginia, and which is engaged in business as an electrical
contractor.
(e) Tri-State Roofing Company, an Ohio corporation, which has its principal
office in Parkersburg, West Virginia, and is engaged in business as a roofing and
sheet metal contractor.
(f) Swindell-Dressler Company, a Pennsylvania corporation, which has its prin-
cipal office in Aspinwall, Pennsylvania, and which is engaged in the business of
manufacturing and erecting industrial furnaces and kilns.
(g) A. J. Boynton Company, an Illinois corporation, which has its principal office
in Chicago, Illinois, and which is engaged in providing engineering services in con-
nection with building construction projects.
Each of the above-mentioned corporations, in the course of the past year, has
performed services or provided materials valued in excess of $50,000, in or to points
outside the State in which they have been incorporated. Fairmont Aluminum alone,
during the past year, has shipped directly to points outside the State of West Virginia,
materials which have been manufactured at its Fairmont, West Virginia, plant, and
which are valued in excess of $5,000,000.
In building the addition to its plant in Fairmont, West Virginia, the Fairmont
Aluminum Company has awarded contracts to the Schurman, Stark, Dressler, and
Pittsburgh Bridge companies. The Schurman Company has awarded, among others,
subcontracts to Tri-State for the performance of certain roofing work at the plant
construction site. The Dressler Company has awarded, among others, a subcontract
to Kisner for the performance of certain sheet metal work at the plant construction
site.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts of the case
Kisner's subcontract with Swindell-Dressler called for the installation of piping
for the annealing furnace of the addition to the Fairmont Aluminum plant. Before
performing any work at the plant itself, Kisner had fabricated materials to be used
in the installation work. But as soon as R. D. Kisner, its shop foreman, and W. F.
Kisner, its business manager,' and three of their employees appeared on the con-
struction site on February 6, 1961, trouble developed.
Kisner and the Sheet Metal Workers were antagonists of almost 2 years' standing.
Kisner had had a contract with the Sheet Metal Workers but it had expired on
May 1, 1959. Kisner refused to sign the union's standard form of contract, and a
,strike occurred,, which did not end until after Kisner had filed charges against the
union that it had failed to bargain in good faith, and a settlement agreement had
been entered into. In the latter part of 1959, the union began writing "unfair"
letters to contractors about Kisner, and in June 1960, after Kisner had been picketed
at a J. C. Penny store, it filed secondary boycott charges against the union?
',Unless otherwise indicated , it should be assumed hereinafter that when Kisner is
mentioned reference is being made to W. F. Kisner, or to the firm.
2 This case is still pending before the Board.
SHEET METAL WORKERS' INT'L ASSN., LOCAL 299, ETC. 1205
The appearance of Kisner and its employees on the Fairmont Aluminum con-
struction site occurred on February 6, 1961, which was a Monday. R. D. Kisner
arrived with three of his men and a truckload of materials about 8 a.m. As the
Kisner firm had no contract with the Sheet Metal Workers or with any other union,
it fell in the category of nonunion contractors. However, employees of the other
contractors or subcontractors on the construction site were members of the various
labor organizations affiliated with the Building Trades Department of the AFL-CIO,
and these labor organizations included the Sheet Metal Workers, the Carpenters,
and the Millwrights.
As R. D. Kisner and his men were back at the annealing furnace on February 6,
and had started erection of their materials, they were approached by Ted Steed,3
an employee of Tri-State, who told R. D. Kisner that he was a steward on the job-
Steed later also identified himself as a trustee of the Sheet Metal Workers-and
asked the three Kisner employees for their union cards. At this time, W. F. Kisner
arrived on the scene and took over the conversation with Steed. The latter took his
pocketbook out, showed Kisner his card, stated that he was steward on the job, and
that since Kisner's men were nonunion they could not work there. When Kisner
declared that he intended to perform his contract, Steed told him that he would
appeal to the Electrical Workers' steward and the other stewards on the job, and
that he would call Allen Stout, the business agent of the Sheet Metal Workers, in
Parkersburg. Kisner's observation upon this was that it was the proper thing to
do, since "it was a business agent's job to take care of these things." About 10
minutes later Steed returned with Mack King, the steward of the Electrical Workers,
who suggested that Kisner accompany them to make a telephone call to Allen
Stout. The three men proceeded to the office of the Boynton Company where
Steed called the office of the Sheet Metal Workers in Parkersburg. As they were
walking over to the Boynton office, Mack King kept telling Kisner that he "had
to get right with the Union." Kisner also asked Steed whether he was a steward
and received the reply that he was not only a steward but also a trustee of the
local. When Steed made his telephone call, he told the person to whom he was
talking that Kisner was on the job, and asked what he should do. Being unable
to obtain a satisfactory answer, apparently, he turned the telephone over to Kisner.
The latter started to talk to the person on the line who had identified himself as
"Mace," 4 and after Kisner had explained the situation, Mace told him that he
"would have to sign a contract in order to work on the job." The conversation be-
tween Kisner and Mace ended at this point.
The testimony shows that the business agents for the Sheet Metal Workers and
for the Carpenters appeared on the Fairmont Aluminum construction site on Febru-
ary 6. Stout arrived there close to noon with Charles Glover, the business agent
for the Steamfitters, Plumbers, and Pipefitters, with whom he had discussed a dis-
pute on another job, but there is no satisfactory evidence that his visit had anything
to do with the Kisner dispute. He was there on another errand, and had no
knowledge of the dispute at this time. The other business agent who was on the
Fairmont Aluminum job on February 6 was Russell M. Hugus of the Carpenters.
Hugus was also financial secretary of the union, and representative of the North
Central Council of Carpenters in which the Millwright's union was also repre-
sented.5 The time of Hugus' visit to the job does not appear, even approximately,
8 His name appears to be misspelled in the transcript as Ted Stead.
4 When Allen Stout testified later at the hearing, he gave the name of the president of
the Sheet Metal Workers as William Jack Mace, and the name of its financial secretary-
treasurer as Lloyd C. Mace. Stout also testified that he and Lloyd C. Mace were the only
full-time employees of the union, and that it was Lloyd C. Mace who stayed at the office.
From this it may be inferred that W. F. Kisner spoke to Lloyd C. Mace. In the course of
his testimony, Stout also identified Ted Steed as a trustee of the union but denied that he
had appointed Steed to be steward on the Fairmont Aluminum job. At first Stout de-
clared that Steed was also a member of the union 's executive board, but he later withdrew
this testimony, explaining that he had fallen into this error because he had not been
present at the meeting of the union at which the members of the executive board had
been elected. Steel had been a candidate for the post but he had not been elected.
5 Hugus testified as a witness for the General Counsel that he held no position with the
Millwrights, who had a full-time business agent, M. A. Lacko, but that if Lacko were un-
available he might have the right to act on behalf of the Millwrights "to straighten some-
thing out or handle something. . . The next day, when called as a witness for the
Respondent, Hugus withdrew this testimony and insisted that he would have no authority
in a labor dispute. Lacko himself, when subsequently' called as a witness , also denied that
Hugus would have authority to pull men off a job.
1206 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but it does appear that while he was there, he overhead a conversation between an
ironworker and an operating engineer at the salamander. The former asked the
latter "if he was going to work with the so-and-so on the job." Hugus asked what
they were talking about and was told that "S. M. Kisner was on the job and they
were non-Union."
In midafternoon of February 6-the time was probably 3:30 or 3:45 p.m.-
there took place a meeting of some of the stewards for various of the crafts on the
job. The precise proceedings at this stewards' meeting are shrouded in a con-
siderable degree of obscurity. It does not appear with certainty who called the
meeting, who presided over the meeting or acted as principal spokesman, or ex-
actly who were the stewards who attended the meeting, or even how many of
them were present. To be sure, since Steed took the lead in questioning the creden-
tials of Kisner's employees, and indicated that he would enlist the support of the
electricians and other crafts on the job, it is reasonable to assume that he called
the meeting and acted as principal spokesman, despite the fact that Floyd Rhyne,
who attended the meeting as steward for the Operating Engineers, testified that
there was not anybody who was "the main speaker at the meeting," for this is con-
trary to normal expectations and experience. The attendance at the meeting was
variously described by the witnesses as consisting of "all" or "almost all" or "most"
of the stewards. Actually, only four of the stewards or alleged stewards were
definitely identified by the witnesses as present at the meeting: Ted Steed of the
Sheet Metal Workers; Mack King of Local 425 of the International Brotherhood
of Electrical Workers; John Rote of Local 549 of the International Association of
Bridge, Structural and Ornamental Iron Workers; and Floyd Rhyne of Local 132
of the International Union of Operating Engineers.6
As for what was said at the stewards' meeting of February 6, it is clear that the
fact that Kisner was a nonunion contractor, and that his men were present on the
jobsite, was discussed. Mack King testified that Ted Steed spoke at the meeting
briefly, stating that "there was a nonunion contractor working on the job," and
asking the stewards what they were going to do. "No one said anything," testified
King, "No one said they was going to do anything. He said he guessed it was up
to the men." John Rote of the Ironworkers testified that he came to the stewards'
meeting "about three minutes before the meeting was breaking up," and that Steed
told him that it was about Kisner, and that they had all decided "to go fishing."
In union parlance this meant that they were not going to work. Floyd Rhyne, who
also testified about what was said at the stewards' meeting on February 6, could
only identify the speaker as "one of the men" who pointed out that Kisner was
nonunion. Thereupon, Rhyne further testified that somebody asked what they
were going to do about it, and suggested sending for the business agents. Rhyne
insisted that nobody at the meeting asked him to go back and tell his men anything,
and that he did not do so, and furthermore that none of his men asked him why
he had gone to the meeting!
There is no doubt, however, that Kisner's presence on the job was discussed by
at least some of the stewards with their men. Mack King testified that when he
was approached after the meeting by some of the men on the job and asked what
they were going to do, he replied that "anything they do it is up to them, it's not
up to me because I don't have the authority." John Rote reported to his foreman,
John Ellis, of Swindell-Dressler, and also to W. L. Anderson, the superintendent
of Swindell-Dressler, that the other crafts were going fishing the next morning.
On his way home that evening Anderson stopped at the Kisner place of business
and told Richard Kisner that labor trouble was brewing, and that he would like
his brother Fred to be on the job early next morning.
During the evening of February 6, Kisner was not idle. He was acquainted with
Burl Snyder and Russell Hugus, and he attempted to secure their assistance, or at
least to neutralize them. Apparently he encountered Burl Snyder at the Disabled
Veterans' Home. Kisner asked: "Work today?" and Snyder replied laconically:
"Work today, not tomorrow," and added: "Fred, I didn't know your employees were
non-union." Snyder then proceeded to tell Kisner that the stewards had had a
meeting, and were not going to work the next day because he was on the job.
6 Counsel for the General Counsel contends that Burl Snyder, who was not only the
Carpenters' steward on the job but also the president of the union, was among the
stewards present at the meeting of February 6. However, I must reject this contention.
It is inconsistent with the testimony of Snyder himself, and there is no good reason for
rejecting his testimony. Snyder testified that he was told what had occured at the meet-
ing when "somebody came outside," and he could readily have acquired knowledge of what
had occurred at the meeting in this way. Not one of the witnesses who testified at the
hearing definitely identified Snyder as present at the meeting.
SHEET METAL WORKERS' INT'L ASSN., LOCAL 299, ETC . 1207
He also told Kisner that he had argued in his behalf, and remarked:. "I was only
one in eight." After talking to someone else for a few minutes, Kisner returned
to Snyder, and after reminding him of "the previous settlement and agreements,"
expressed the wish that "they should not do anything wherein innocent parties and
companies would be involved." Before parting from Snyder, he asked him whether
he was the union -business agent and he received the reply that Russell Hugus was
the union's business agent. Consequently, later in the evening, Kisner telephoned
to Hugus. Kisner's testimony with respect to this telephone conversation was as
follows:
I told him that I had learned there was going to be a strike on the job the
next morning, and since I had known him for many years I wanted to bring
him up to date on the situation to protect many different interests, and that
later on I did not want him to say, "Fred if you would have told me that I
would have tried to do something." I explained our previous settlement agree-
ment. He said he was on the jobsite on the 6th and he saw Allen Stout but
he did not learn of any proposed trouble and that ended that conversation.
On the evening of February 6, Burl Snyder himself telephoned to Hugus in an
effort to secure advice from him. He told the business agent, who also happened to
be his uncle, that Kisner was on the job and that it looked to him like 'there was
going to be a little difficulty." According to Snyder, at the time he made the tele-
phone call to Hugus, the latter was in a meeting, and told him that he knew nothing,
and could not tell him yes or no. Hugus' own testimony with respect to his tele-
phone conversation with Snyder was as follows:
He informed me that Kisner was on the job. He asked me, "What was he
going to do, what am I going to do." He kept repeating, "What am I going to
do" several times, He didn't say, "What am I going to tell the men or anything
else," just "What am I going to do." I told him I wasn't going to tell him yes
or no, to make up his own decision.
There was also a meeting between Stout and Steed on the evening of February 6.
They had dinner together that evening in a restaurant in Fairmont. In testifying
about their conversation at that dinner,? Stout described the subject of the conver-
sation as the "weather and what happened on the job." While he admitted that
Steed had told him that Kisner was on the Fairmont Aluminum job, and that he
had attended the steward's meeting, where there had been a discussion of Kisner's
status as a nonunion contractor,8 he denied that Steed had informed him that he had
called the stewards' meeting which had taken place that day or that tomorrow would
be a fishing day, or that Steed had asked for or that he had given Steed any instruc-
tions concerning his behavior the next day. "He was not my steward," explained
Stout, "so I did not give him any instructions." 9 Indeed, Stout maintained that he
had not known whether Steed was on the Fairmont Aluminum job, and that he under-
stood that Steed had finished the job on February 6, and was waiting to check in
with Tri-State to determine what they wanted him to do.10
There was no cessation of work on February 6 on the part of any of the men em-
ployed on the Fairmont Aluminum job. However, on the morning of February 7,
while some 40 or 50 men appeared in their work clothes at the gate to the con-
struction site , they did not go to work. Since the turnout in a normal day would be
at least 75 men, the rest must have gone "fishing." The men who came to the con-
struction side did not form a picket line or carry placards but either stood on the
highway or sat in their cars . Some of them undoubtedly did not know that they
7 While Stout was called as a witness by both counsel for the General Counsel and
counsel for the Respondents, Steed, for some unexplained reason was not called as a wit-
ness by either side.
8 However, Stout gave inconsistent testimony with respect to whether Steed told him
about the stewards' meeting. When called on behalf of the General Counsel, Stout was
asked: "Did he (Steed) tell you about the Stewards' meeting?" and replied: "No. He
didn't tell me anything about the Stewards' meeting." The next day, when testifying on
behalf of the Respondents', Stout was asked: "Did Stead tell you he attended the Stewards'
meeting?" He replied: "Yes."
8 Under the constitution of the Sheet Metal Workers, stewards may be appointed either
by the president of the local or by the business agents. Stout testified that in the case
of Local 299, the practice was for the business agent to appoint the stewards
10 It appears to be true that Tri-State had only two sheet metal workers on the Fairmont
Aluminum job, one of them being Ted Steed, and the other one William Smith, who,
moreover, was not a regular employee of Tri-State.
1208 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not going to work that day, and one of them had reported for work, although
he had a cold.'1 Both Ted Steed and Burl Snyder were seen among the men at the
plant gate . Richard Kisner testified that a man, who was sitting on a car bumper,
and who, upon being asked, identified himself as Steed, explained to him: "There is
no strike, the men just don't feel like working today, and as far as I'm concerned,
I am just caught up. I don't have anything to do." Snyder himself testified that
he and his men, a complement of about 20 carpenters, were ready, able, and willing
to work that morning but were standing by pending orders from their foreman
whose name was McGee. Cyrald Rohrbaugh, steward for the Millwrights, who be-
cause of his diminutive height bore the sobriquet, "Five-eighths," and who had not
been present at the stewards' meeting the previous day, also was present with the
other millwrights, and testified that he ready to work. "I didn't drive that far not to
work," he declared. However, about 10 a.m. the men left the construction site
when Blacky Ballard, the foreman of the Schurman Company, came out and told
them that there would be no work that day.
Ballard's direction to the employees to go home was, paradoxically, the conse-
quence of the first of two efforts on the part of management to get the men back to
work. These consisted of two meetings held on February 7-the first with the union
stewards in the early morning and the second with the union business agents in
midafternoon.
When Kisner arrived on the jobsite about 8:15 a.m. (starting time was 8 a.m.),
he went toward the annealing furnace to see Anderson, the superintendent of
Swindell-Dressler, who asked Kisner to accompany him to his office to see if they
could get the matter of the work stoppage straightened out. On the way to the
office they picked up Branch Scearcy, the project engineer for the Schurman Com-
pany, Ballard, King, of the Stark Electric Company, and "another fellow." Scearcy
remarked to Kisner: "You have our job shut down," to which Kisner replied: "It's
your men that have the job shut down, it isn't ours. We are going to do the
work." Ballard then warned Kisner: "You'd better not try to bring your men across
that line up there." At this point Anderson intervened and suggested that Scearcy
arrange to call a meeting of the stewards on the job to get "the trouble ironed out."
Scearcy indicated that he would accede to this suggestion only if it had the approval
of the Fairmont Aluminum Company. This approval was obtained from one
Tutalo, the plant engineer for Fairmont Aluminum. Anderson walked out of the
building and, meeting Metz, a steward for the Iron Workers' union , instructed the
latter to get the stewards together for a meeting in the Boynton office. This meet-
ing was held about 9 a.m., and was attended by stewards of the various crafts on the
job, including Ted Steed, Burl Snyder, and Cyrald Rohrbaugh, and by various repre-
sentatives of management, including Anderson, W. F. and Richard Kisner, Ballard,
Scearcy, and Tutalo, although these three management representatives did not stay
throughout the meeting. There ensued a discussion of Kisner's lack of union con-
tract, and the opinion was expressed that it was not fair for Kisner to be on the job
when the other employees had to pay union dues. Kisner offered to pay the Parkers-
burg scale on the job. One of the stewards was agreeable to this suggestion but the
others, including Steed, were insistent that Kisner sign a union contract. Kisner
pointed out that they could not negotiate a contract then and there, and Anderson
felt that the stewards did not have authority, in any event, to negotiate a union
contract. So the suggestion was made, and adopted, that a meeting of the union
business agents be called for that afternoon.
Some difficulty was experienced in contacting Stout and in getting him to come
to the business agents' meeting. Steed talked to Stout on the telephone and was
unable to persuade him to come to the meeting but he agreed to come after Butler,
of the Iron Workers, had talked to him. In addition to Stout, other business agents
were present, namely, Hugus of the Carpenters, Glover of the Plumbers, Danley of
the Electrical Workers, Butler of the Iron Workers, and Parsons of the Operating
Engineers, who was also a president of the Building Trades Council of the area.
Indeed, Anderson considered that they were present in their capacity as members
of the Council rather than as business agents.12 The management representatives
present were Anderson, W. F. and Richard Kisner, Joseph J. Macewicz, the resident
engineer of the Boynton Company, and one McKeever, who was personnel director
for Fairmont Aluminum.
The meeting of the business agents began about 2:30 or 3 p.m., and Anderson,
acting as moderator, called upon Stout to present his case. Stout explained the difpi-
II This was Joseph M . Dunay, one of the carpenters.
v It should be noted that M. A. Lacko, the business agent of the Millwrights, was not
present at the meeting.
SHEET METAL WORKERS' INT'L-ASSN.' LOCAL 299, ETC. 1209
culties in signing a contract with Kisner because the firm had been classified as un-
fair, and because under the constitution of the Sheet Metal Workers the Kisner
brothers, who were all partners in the firm, could not also be members of the union.13
Someone then remarked that only an "international man" could straighten the situa-
tion out, and Stout agreed to call one in . At this point Anderson, who was con-,
vinced that, in view of the way the meeting was going, the work stoppage could be
brought to an end only by getting Kisner to leave the job, suggested to W. F. Kisner
that he accompany him outside the meeting, and the latter agreed to do so. In
the private conversation between Anderson and Kisner, the former suggested to the
latter that he stay away from the job until an International representative could arrive
and straighten things out. Having agreed upon this, Anderson and Kisner also called
Stout out of the meeting and told him what they had discussed. Stout agreed to call
in an International man, and, as the three men were going back into the meeting,
Anderson asked Stout whether "if we go ahead with this, will you refuse to use any
of Kisner's material that is already fabricated?" and Stout replied: "No I can't re-
fuse, that's a secondary boycott and Fred knows that." Upon returning to the
meeting, Anderson and Stout explained to those present that Kisner had agreed,
to stay away from the job until an International man could come in to straighten out
the difficulties, and Anderson having been assured by Parsons as president of the
Building Trades Council that there would be no objection to the delivery or use of
Kisner's materials, the meeting broke up. Anderson testified explicitly that the busi-
ness agents present at the hearing did not in any way suggest the arrangement which
he made with Kisner. Richard Kisner also testified that he did not hear any rep-
resentative of the Respondent Unions say or do anything that had any bearing on
the work stoppage, and that none of them told him not to work on the job. Mace-
wicz testified that when, as the meeting was breaking up, he asked the group of
business agents whether the men would be back to work the next day, they told him
that there was no reason why they should not be back to work, and that he implied
from this that there had been no reason why they should not have been working
that day.14
On February 8, the day after the meeting with the business agents, work was fully
resumed on the Fairmont Aluminum construction site, and all of the employees,
except Kisner's men, worked as usual . Two ironworkers, employed by Kisner,
completed whatever work they could do on February 8 and 9. After negotiations
with a representative of the union's International 15 that came to nothing- because
of his insistence that Kisner sign the standard form of union contract, Kisner, again
at the suggestion of Anderson, subcontracted the work which he was to perform
under the contract to Tri-State, which agreed to do the installation work with Kisner
materials, and with the help of Richard Kisner who was to stay on the job in order to
supervise the making of connections . The arrangement between Kisner and Tri-
State was made on or about March 10, 1961.
B. Conclusions
Insofar as pertinent to the facts of the present case, Section 8(b) (4) (i) and ( ii) (B)
make it an unfair labor practice for any labor organization to induce or encourage
employed individuals to engage in a strike or a refusal in the course of their em-
ployment to handle or work on any materials or to perform any services or to
threaten, coerce, or restrain any person in commerce where in either case an object
thereof is to force or require any person to cease using or handling the products
of any other producer or to cease doing business with any other person. Thus, both
inducements and threats to accomplish the proscribed purposes are made unlawful.
The Respondents seem to contend that the work stoppage on February 7 was not
induced by them but was of -spontaneous origin among the rank-and-file of their
members. Justice Holmes once remarked in one of his speeches: "Judges are apt to be
naif and simple-minded men," and perhaps the same is true of hearing examiners.
It would take an extraordinary degree of naivete, however, to believe the particular
fishing story which is offered as an explanation of the work stoppage in the present
18 It is so provided in article 16, section 1(c), of the Sheet metal Workers' constitution.
14 Counsel for the General Counsel contends that Macewicz and Anderlon testified that
at no time during the meeting of the business agents did any of them deny responsibility
for the strike. But there is nothing to show that the question of responsibility for the
strike was even raised at the meeting. The situation is thus akin to asking a witness:
"How often do you beat your wife?" without. first asking him: "Do you beat your wife?"
15 The name of the International representative was Jake Baer.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, even though it appears that fish do run in West Virginia in the month of
February.
But, to conclude that the work stoppage of February 7 was not spontaneous 16
but precipitated by one or more of the union agents or members who were present
on the Fairmont Aluminum construction site, no more disposes of the case than the
recognition of the existence of a crime necessarily enables the police to discover its
perpetrator. There were eight unions on the jobsite and, while five of them have
been severed from the complaint, they have not necessarily been removed from
the case. The very multiplicity of unions on the jobsite creates a Tweed Ring type
of situation,17 making it possible for any one of the unions to attempt to shift
responsibility to one or more of the others. As in our system of law guilt is always
individual, and is not established by mere association, it is necessary to determine
whether each of the unions who are included as Respondents in the present proceed-
ings may be held responsible for the work stoppage under the normal conceptions of
agency. They cannot be lumped together, and the actions or statements of one
attributed to the other to establish complicity. I shall, therefore, proceed to consider
the case of each of the Respondents separately.
1. The case of the Sheet Metal Workers
So far as the Sheet Metal Workers are concerned, I have no doubt that the union
is responsible for the acts of Steed, despite the artful dodges, subterfuges, and care-
fully circumscribed locutions in which he appears to have indulged in inducing the
work stoppage. As our highest tribunal has said, the words "induce" or "encourage"
are "broad enough to include in them every form of influence and persuasion."
[Emphasis supplied.] 18 It was no less "inducement" because Steed after calling the
attention of the union stewards to the presence of Kisner on the job said that he was
leaving it up to them to determine what to do.19 When the union stewards passed
the word along to at least some of the men on the job, they also induced these men
to engage in the work stoppage.
The stewardship of Steed is, to be sure , denied, as well as his authority to effect a
work stoppage. Although the credibility of Stout is impaired by his initial denial
that Steed told him of the stewards' meeting, I am inclined to believe that Stout may
not have known at first that Steed was on the job, and that there was no occasion,
therefore, to appoint him as steward. But the mere fact that Steed had appointed
himself as steward indicates the large role he played in the union's affairs, and it seems
to me that the relationship between Steed and Stout was such that there was a tacit
understanding between them that Steed could assume the stewardship on any job on
which he worked. They were obviously very friendly, and in addition Steed was an
important figure in the union. Even if one were to accept Stout's retraction of his tes-
timony that Steed was not a member of the executive board, the fact would remain
that Steed had been a candidate for the post, and that as trustee for the union, the
holding of which office is not denied, he was one of the general officers of the
union.20 While it is no doubt true that agency may not be established solely by the
declarations of the alleged agent, the fact that Steed held himself out to Kisner
as a steward assumes significance in the light of the relationship between Steed and
Stout, and the conduct of Stout and Lloyd C. Mace, the union's financial secretary-
treasurer, after they learned of Steed's activities.
It is this conduct which, it seems to me, constitutes ratification of Steed's acts, and
which really makes it immaterial whether Steed had been appointed a steward. In
view of the history of the labor relations between Kisner and the Sheet Metal
Workers in the period preceding the work stoppage, it would be surprising if the
union accepted Kisner's presence on the job with equanimity. But it is not necessary
to rely merely upon this history, since Mace informed Kisner even before the work
10 While there is such a physical phenomenon as spontaneous combustion , there are no
spontaneous strikes or work stoppages.
111 have in mind Nast's famous cartoon in which the malefactors point accusing fingers
at one another.
18 See Interntional Brotherhood of Electrical Workers, Local 501; et al. v. N L.R B.
(Samuel Langer), 341 U.S. 694, 701-702.
19 For instances of guarded remarks or evasive answers, see Richfield Oil Corporation,
95 NLRB 1191, 1193. Hammermill Paper Company, 100 NLRB 1176, 1185-1186; Clark
Bros. Transfer Co., 116 NLRB 1891, enfd as mod. sub nom. IBT, Local 554, 262 F. 2d
456 (C.A.D.C.) ; Chauffeurs, Teamsters and Helpers Local Union No. 175, et al. (McJwnhtn
Corp.), 128 NLRB 522.
20 See articles 12 and 13 of the union constitution.
SHEET METAL WORKERS' INT'L ASSN., LOCAL 299, ETC. 1211
stoppage that he would have to sign a contract to work on the job. This was a
declaration from quite an authoritative source. As for Stout's denial that he had
been told by Steed that tomorrow would be a fishing day, I simply cannot credit it.
This denial alone would be sufficient to undermine his credibility,, quite apart from
the contradictory testimony which he gave with respect to his knowledge of the
stewards' meeting. Of course, the mere fact that the two sheet metal workers on the
job may have completed their work by the evening of February 6 in no way ex-
cused Steed's previous conduct or Stout's ratification thereof.
In conclusion, I should add that I do not predicate my conclusion that the union
ratified Steed's acts on anything that Stout said or did in the meeting of the business
agents in the afternoon of the work stoppage. Neither Stout nor any of the other
business agents who attended the meeting were responsible for arranging it. They
were there by invitation, although it can hardly be said that the invitations were
engraved. The purpose of their attendance at the meeting was to work out a
means of getting the men back to work. There is no evidence that they made any
threats at the meeting, and whatever they said that may come under the head of
"inducement" was privileged since it was addressed to top management representa-
tives.21 While it has been held that the acquiescence of an employer in a secondary
boycott prohibited by the Act may not be asserted as a defense,22 the dispute be-
tween Kisner and the Sheet Metal Workers was primary, and hence Stout's
acquiescence in the agreement, which was the only means of ending the work
stoppage, is not evidence of ratification of the precedent acts. Nevertheless by in-
ducing the work stoppage for the purpose of removing Kisner from the job, the
Sheet Metal Workers also violated Section 8(b) (4) (ii) (B) of the Act 23
2. The case of the Carpenters
The institution of a secondary boycott may be likened to the casting of a pebble
into a pool. The labor organization that is involved in the primary dispute is the
pebble, and the pool consists of the other labor organizations. The pool will
naturally be least disturbed at the periphery.
This seems to me to have occurred in the present case, so far as the Carpenters
and the Millwrights are concerned. I find nothing to implicate the Carpenters in the
institution of the boycott, and little to show that they supported it. As I have found
that Burl Snyder was not present at the stewards' meeting which took place on
February 6, the Carpenters cannot be held responsible by reason of what occurred
at that meeting. While Snyder learned very soon after the meeting that in all likeli-
hood tomorrow would be a fishing day, there is no evidence that he did anything to
induce his men to join the fishing expedition. On the contrary, he actually put in a
good word for Kisner, and he seems to have listened sympathetically when Kisner
admonished him not to do anything for which he might be sorry . It is true that
Snyder attended the stewards' meeting during the morning of February 7, which was
the morning when the work stoppage occurred but, as I have already pointed out
with reference to the meeting of the business agents on the afternoon of the same
day, the stewards' meeting, too, was by invitation only, and was also called in an
effort to get the men back to work.
Kisner admonished not only Burl Snyder but Russell Hugus, and I believe that
this admonition also took effect. The conduct of Hugus was, to be sure, somewhat
equivocal, but I am not convinced that what he said or did, or rather what he did not
say, or do, can be said to amount to a ratification of the boycott. The bit of
profanity overheard by Hugus at the salamander acquainted him early with Kisner's
presence on the job but it was hardly incumbent upon him to rebuke the profane
ones who were, respectively, an ironworker and an operating engineer, neither of
whom were members of his union , or to tell them what to do. So far as his subse-
quent conversations with Snyder are concerned, they cannot be evaluated properly
unless it is borne in mind not only that the two men stood in the relation of
nephew and uncle to one another but also that Snyder, in addition to being steward
on the job, was also president of the union. Even if it be assumed that a union
business agent can give orders to a union president, he would be more hesitant to do
n See Local Union No. 505, International Brotherhood of Teamsters, etc. (Carolina
Lumber Company), 130 NLRB 1438
22 See N L R.B. v. Local 11, United Brotherhood of Carpenters & Joiners of America
(General Millwork Corp .), 242 F. 2d 932 (C.A. 6), where the history of this doctrine
is discussed.
&' See Local Union 885, International Brotherhood of Operating Engineers, AFL-CIO
( Carleton Brothers Company ), 131 NLRB 452.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so than would otherwise be the case. The giving of advice is, moreover, always a
delicate and dangerous business even when it is solicited. It is doubly dangerous
when the person whose advice is solicited has no firsthand knowledge of the situation
with reference to which his advice is sought. This appears to have been the
case when Snyder approached Hugus. The latter had heard rumors that trouble was
brewing but he had had nothing to do with causing it, and was not anxious to get
involved. When Snyder telephoned him, he was busy at a meeting, and he hardly
had any opportunity for considered judgment. It was not unnatural for him under
the circumstances, and in view of the nature of the relationship between them, to
construe the request for advice narrowly-as calling upon him to tell Snyder what
he, personally, should do. In any event, he was not bound to give orders or advice
unless he knew that his steward had done something affirmative to encourage
his men to participate in the work stoppage, and, of this, there is no evidence.
There is no evidence, moreover, that the carpenters' stewards had authority to
effect a work stoppage; indeed, the evidence is to the contrary.24 The union cannot
be held guilty of participating in the boycott by total inaction, and, while Snyder
was present at the plant gate on the morning of February 7, there is nothing that
refutes his testimony that he, as well as his men, were ready to work, and were
standing by awaiting the orders of their foreman. Apparently, Snyder had come to
the right decision without any advice from his uncle!
3. The case of the Millwrights
In view of my findings with respect to the Sheet Metal Workers and the Car-
penters, there is little need to discuss in detail the case against the Millwrights,
which is even weaker. So far as the Millwrights' steward, Cyrald Rohrbaugh, is
concerned, the evidence is perfectly clear that he did not attend the stewards' meet
ing of February 6, and so far as the Millwrights' business agent, M. A. Lacko, is
concerned, he was not even in the vicinity of the Fairmont Aluminum Construction
site either on February 6, when the work stoppage was precipitated, or on Febru-
ary 7, when it occurred. On February 6, Lacko was in Cumberland, Maryland,
helping an uncle take care of some family affairs, and on February 7, he left his
home at Morgantown, West Virginia, to take care of union business in Tucker
County, and did not return home until the early hours of February 8. Lacko did not
learn of the work stoppage at the Fairmont Aluminum job until he was leaving on
another trip on February 8. He then met someone in the Morgantown Post Office
who told him about it. Since it was apparent from what he was told that the men
had already returned to work, Lacko remarked to his informant: "There is no use
in me going up there then "
There is, to be sure, the testimony of Hugus that if Lacko were unavailable he
might have authority "to straighten something out or handle something," but since this
testimony was not only withdrawn by Hugus but Lacko himself denied that Hugus
had any authority to act for him, I must necessarily accept his denial. Hugus' with-
drawal of his testimony of this point followed a pattern that became all too familiar
at the hearing but there is nothing whatsoever that reflects upon Lacko's credit as
a witness.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent, the Sheet Metal Workers' union, set
forth in section III, above, occuring in connection with the operations of the
employers set forth in section II, 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.
V. THE REMEDY
Having found that the Respondent, Sheet Metal Workers' union, has engaged
in unfair labor practices, I shall recommend that it cease and desist therefrom a5
u While the Board has, assumed that union stewards on a jobsite have broad authority,
I do not understand this assumption to hold when there is evidence to the contrary. See
Local 1016, Untted Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al.
(Booher Lumber Co., Inc ), 117 NLRB 1739, 1746.
25 The recommended order will follow the' form prescribed in Local Union 825, Inter-
national , Brotherhood of Operating Engineers , AFL-CIO ( Carleton Brothers Company),
131 NLRB 452.
SHEET METAL WORKERS' INT'L ASSN., LOCAL 299, ETC. 1213
and that it take certain affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. S. M. Kisner & Sons, Fairmont Aluminum Company, Schulran Construction
Company, Pittsburgh Bridge and Iron Works, Stark Electric Company, Tri-State
Roofing Company, Swindell-Dressler Company, and A. J. Boynton Company are
engaged in commerce.
2. Sheet Metal Workers' International' Association, Local 299, AFL-CIO; United
Brotherhood of Carpenters and Joiners of America, Local Union 428, AFL-CIO;
and International Brotherhood of Carpenters and Joiners of America, Millwrights
and Machinery Erectors Local 1369, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
3. By inducing and encouraging employees of the various employers , constructing
an addition to the plant of the Fairmont Aluminum Company, in Fairmont, West
Virginia, to engage in a refusal in the course of their employment to perform any
services in connection therewith and by coercing their employers to cease doing
business with S. M. Kisner & Sons, the Respondent, Sheet Metal Workers' Inter-
national Association, Local 299, AFL-CIO, engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
5. The United Brotherhood of Carpenters and Joiners of America, Local Union
428, AFL-CIO, and International Brotherhood of' Carpenters and Joiners of
America, Millwrights and Machinery Erectors Local 1369, AFL-CIO, have not
committed any unfair labor practices within the meaning of Section 8(b)(4)(i)
and (ii ) (B) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and,
pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
Sheet Metal Workers' International Association, Local 299, AFL-CIO, it officers,
agents, representatives, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any individual employed by Fair-
mont Aluminum Company, Schurman Construction Company, Pittsburgh Bridge
and Iron Works, Stark Electric Company, Tri-State Roofing Company, Swindell-
Dressler Company, A. J. Boynton Company, or by any other person engaged in
commerce, or in an industry affecting commerce, to engage in a strike or refusal
in the course of his employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities, or to per-
form any services where an object thereof is to force or require said companies
or any other employer or person.to cease doing business with the partnership of
S. M. Kisner & Sons.
(b) Threatening, coercing, or restraining Fairmont Aluminum Company, Schur-
man Construction Company, Pittsburgh Bridge and Iron Works, Stark Electric
Company, Tri-State Roofing Company, Swindell-Dressler Company, A. J. Boynton
Company, or any other person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or require said companies or any
other employer or person to cease doing business with the partnership of S. M.
Kisner & Sons.
2. Take the following affirmative action which I'find will effectuate the policies
of the Act:
(a) Post in the business offices and meeting halls of the Sheet Metal Workers'
union copies of the notice attached hereto marked "Appendix." Copies of said
notice, to be furnished by the Regional Director for the Sixth Region, shall, after
being duly signed by the authorized representative of the said union , 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 to insure
that such notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Sixth Region signed copies of
the notice attached hereto marked "Appendix," for posting by the Fairmont Alumi-
num Company, and the other companies referred to above, they being willing,
at places where they customarily post notices to their employees..
(c) Notify the Regional Director for the Sixth Region, in writing, within 20
days from the date- of the receipt of this Intermediate Report, what steps the
Respondent, the Sheet Metal Workers' union, has taken to comply. herewith.. -
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that, unless within 20 days from the date of the
receipt of this Intermediate Report, the Respondent, the Sheet Metal Workers'
union, notifies the said Regional Director that it will comply with the foregoing
recommendations, the Board issue an order requiring the said Respondent Union
to take the aforesaid action.
Finally, I recommend that the complaint be dismissed with respect to the Re-
spondents, the Carpenters Union, and the Millwrights Union.
APPENDIX
NOTICE TO ALL MEMBERS OF SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION, LOCAL 299, AFL-CIO
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT induce or encourage employees of Fairmont Aluminum
Company, Schurman Construction Company, Pittsburgh Bridge and Iron
Works, Stark Electric Company, Tri-State Roofing Company, Swindell-Dressler
Company, A. J. Boynton Company, or of any other employer, to engage in
a strike or a refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, materials,
articles, or commodities, or to perform any services, or threaten, coerce, or
restrain any of the said companies, or any other employer or person, to cease
doing business with the partnership of S. M. Kisner & Sons.
SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION, LOCAL 299, 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.
A. R. Gieringer Tool Corp . and Tool & Die Makers Lodge No.
78, International Association of Machinists , AFL-CIO. Cases
Nos. 13-CA-3878 and 13-CA-4080. December 13, 1961
DECISION AND ORDER
On March 8, 1961, Trial Examiner Stanley Gilbert issued his Inter-
mediate Report in Case No. 13-CA-3878, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices in
violation of Section 8(a) (1) of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. He also found that
the Respondent had not committed other violations of Section 8 (a) (1)
and had not discriminatorily discharged Clarence Ballsieper as alleged
by the General Counsel. Thereafter, the General Counsel filed ex-
ceptions to the Intermediate Report and a supporting brief.
On June 22, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in Case No. 13-CA-4080, finding that the Re-
spondent had not engaged in the violations of Section 8(a) (3) alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
134 NLRB No. 124.