Subordinate Union No. 7 of Calif., Bricklayers, Etc.

National Labor Relations Board - Board Decisions

Sep 25, 1964

148 N.L.R.B. 1321 (N.L.R.B. 1964)

SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS, ETC. 1321
Subordinate Union No. -7 of California of Bricklayers , Masons
and Plasterers International Union of America , AFL-CIO and
Arthur G. 'Warner and Roscoe-Ajax Construction Co., Inc.,
Knickerbocker Construction Corporation , Joint Venture and
Mason & Builders Association of California , Inc., Parties to
the Contract . Case No: 20-CB-1057. Septe'imber 25, 1964
DECISION AND ORDER
On December 27, 1963, Trial Examiner Maurice M. Miller issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. , There-
after, the General Counsel filed exceptions to the Decision, and a brief
in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision.
the exceptions and the brief, and the entire record, and hereby adopts
the findings, conclusions, and recommendations 1 of the Trial!
Examiner. •
ORDER
Pursuant to Section 40(c ) of the National Labor Relations Act, as
amended , the Board hereby adopts as its Order , with the modification
set forth above, the Order recommended by the Trial Examiner, and
orders that Respondent , Subordinate Union No. 7 of. California of
Bricklayers , Masons and Plasterers International Union of America,
AFL-CIO, its officers , agents , representatives , successors, and assigns,
shall take the action set forth in the - Trial Examiner's Recommended
Order , as amended 2 • • - -
'No exceptions were taken to the unfair labor practices found by the Trial Examiner
or to his Order recommended in remedy thereof However , we shall amend paragraph
1(a)(2) of the Order and Notice to read as follows * "provided that membership-in Re-
spondent Union shall be a condition of continued employment except for periods permitted
by Section 8(a) (3) or 8 (f) of the Act, whichever may be applicable."
The new address of Region 20 is* 13050 Federal Building , 450 Golden Gate Avenue,
Box 36047 , San Francisco , California , Telephone No. 556-3197.
148 NLRB No. 123. 1
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION -
STATEMENT OF THE CASE
Upon a charge filed February 15, 1963, followed by an amended charge duly filed
and served June 18, 1963, the General Counsel of the National Labor Relations Board
caused a complaint and notice of hearing to be issued and served upon Subordinate
Union No. 7 of California of Bricklayers, Masons and Plasterers International Union
of America, AFL-CIO, designated as Respondent Union in this Decision. The
complaint, dated and served June 28, 1963, was subsequently amended in certain
formal respects; therein Respondent Union was charged with unfair labor practices
within the meaning of Section 8(b) (1) (A) and 8(b) (2) of the National Labor
Relations Act, as amended, 61 Stat. 136, 73 Stat. 519. Counsel for Respondent
Union thereafter filed a motion to dismiss, which was denied, together with an
answer whereby Respondent Union challenged the Board's jurisdiction and denied
the commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to the issues was held at San Francisco,
California, on August 13 and 14, 1963, before Trial Examiner Maurice M. Miller.
The General Counsel and Respondent Union were represented by counsel. Each
party was afforded a full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. At the outset, counsel
for Respondent Union conceded the Board's jurisdiction, certain factual matters, and
certain legal conclusions set forth within the complaint, but denied the commission
of some unfair labor practices charged. Counsel for the General Counsel and Re-
spondent Union, when their testimonial presentations were complete, reported their
desire to file briefs. These have been received and duly considered.
Upon the entire testimonial record, documentary evidence received, and my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE PARTIES TO THE CONTRACT
Roscoe-Ajax Construction Co., Inc. and Knickerbocker Construction Corporation,
Joint Venture, designated as Joint Venture within this Decision, maintains its main
office and principal place of business in San Francisco, California; there, throughout
the period with which this case is concerned, it has been engaged in the business of
general contracting,and building construction, ,including the construction of a Fed-
eral Government office building. During the calendar year 1962, Joint Venture, in
the course and conduct of its business, purchased and received goods, materials, and
services valued in excess of $50,000, directly from places and points located outside
the State of California. .(Though counsel for General proffered an amendment to
his complaint whereby Mason & Builders Association of California; Inc. was desig-
nated a party to the contract which General -Counsel has challenged under the
statute, no contentions have been made, and no data proffered for the record, with
respect to Association's participation in commerce, directly or vicariously. No con-
clusions with respect to Association's status as an employer engaged in commerce,
or business activities which affect commerce , have; therefore , been reached or
stated.)
Upon the complaint's jurisdictional allegations, which are presently conceded to
be correct, I find that Joint Venture is now, and has been at all times material, an
employer within the meaning of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the meaning of Section 2(6) and
(7) of the statute. With due regard for the jurisdictional standards which the
Board presently applied-see Siemons Mailing Service, 122 NLRB 81, and related
cases-I find ' assertion of the Board 's ' jurisdiction in this , case warranted and neces-
sary to effectuate the statutory objectives.
II. THE RESPONDENT UNION
Subordinate Union No. 7 of California of Bricklayers , Masons and Plasterers In-
ternational Union of America, AFL-CIO, designated as Respondent Union in this
Decision , is a labor organization within the meaning of Section 2(5) of the Act, as
amended , which admits certain employees of Joint Venture to membership.
III. THE UNFAIR LABOR PRACTICES
A. Stipulated matters
1. Persons concerned _
Throughout the period with which this case is concerned , John J. Gehron, Joint
Venture 's project superintendent, served as coordinator of construction work on the
SUBORDINATE UNION 7 -OF .CALIF., BRICKLAYERS, ETC. 1323
Federal Government office building ; and functioned as Joint Venture 's agent , within
the meaning of Section 2(11) and (13) of the statute; Respondent Union does not
dispute General Counsel's claim that he may properly be considered a supervisor.
Throughout the same period, prior to February 20, 1963, Herbert Mickelson was
Joint Venture's designated superintendent of bricklayers; counsel for Respondent
Union concedes, therefore, that Mickelson likewise functioned as a supervisor, and
merited characterization as Joint Venture's agent, within the -meaning of the desig-
nated statutory provisions.
Further, throughout the period with which this case is concerned, Daniel R.
Sweeney, president, and Patrick J. Canavan, business representative and financial
secretary, concededly functioned as Respondent Union's agents, within the meaning
of Section 2(13) of the Act, as amended.
2. Background
On or about October 11, 1962, Joint Venture became party to a collective-
bargaining contract covering its bricklayer employees. This contract had previously
been negotiated and executed "by and between" Respondent Union and the Mason
& Builders Association of California, Inc., which will be designated as Association
within this Decision. (So far as appears, Joint Venture signed a printed copy of
Respondent Union's contract with Association; nothing in the record would warrant
a determination that Joint Venture ever knowingly became an Association member,
or that it became privy to the contract in question by joining Association, during its
term, pursuant to article XXVII of the document.) The agreement, by its terms,
had previously become effective August 1, 1962, with a July 31, 1964, termination
date, subject to extension from month to month thereafter, absent service of written
notice by either party of a desire for modification or termination.-
The collective-bargaining contract in question contains , inter alia, certain pro-
visions which deal with "clearances" for work, membership within Respondent
Union as a condition of employment, and work reservations for the benefit of union
members. (Since these provisions presumptively might be affected by the terms- of
any proper Board order based upon the present record, they have been set forth in
the attached Appendix A.) Within their contract, further, Respondent Union and As-
sociation had "mutually convenanted and agreed" that certain designated provisions of
the constitution and rules of order of Bricklayers, Masons and Plasterers' Interna-
tional Union of America, coupled with Respondent -Union's complete bylaws, as
they existed when the contract in question was signed, would be considered incorpo-
rated therein and made part thereof by reference, just as if fully set forth. (Cer-
tain portions of Respondent Union's local bylaws-which General Counsel has chal-
lenged as violative of the statute-will be found, likewise, set forth within the desig-
nated attached Appendix.) Those provisions of the constitution and rules of order
-of Respondent Union's parent body which the contract purports to compass by ref-
erence, mainly, define what constitutes-, masonry; specifically, they define the work
tasks considered to be within this craft organization's jurisdiction, with respect to
brick masonry, stone masonry, marble masonry, marble, mosiac, and terrazzo
work, and tile layers' work. However, article XI, section 2 of the constitution in
question, which likewise stands as part of the contract by reference, further requires
all foremen to be qualified "practical mechanics" within the trade branch over which
they may -exercise supervision , and proceeds to declare that "foreman having the
authority to hire, discharge , and exercise similar supervisory functions" will be rec-
ognized as the exclusive representatives of management.
So far as appears , these provisions of the constitution and rules of order of Re-
spondent Union 's parent body have - been made part of the present record solely for
the sake of completeness , so that the full scope of Respondent Union 's current con-
tract with Joint Venture may be noted . Nothing within General Counsel 's presenta-
tion suggests a contention that the specific contractual provision , pursuant to which
these portions -of the ' parent body 's constitution have been made part of the - contract
by reference, per se, reflects a statutory violation.
3. Present situation
Since the Joint Venture became privy to Respondent Union 's contract , so far as
the record shows , that contract has been given effect ; specifically , various substan-
tive provisions thereof have been followed in connection with Joint Venture's -con-
struction operations for the Federal Government 's office building.
.1324 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Conclusions
With respect to clearances for work, Respondent Union's contract with Joint
Venture-previously noted-specifically article VIII therein-requires that such
clearances shall be granted "members of other locals" affiliated with Respondent
Union's parent body, if some "fair percentage" of Joint Venture's employees are Re-
spondent Union 's members.
The contract does provide, further, that-whenever members of Respondent
Union are not available for referral-work clearances for members of other locals
as may be necessary shall be granted. Nevertheless, Respondent Union's con-
tractual obligation to grant work clearances for members of sister locals based on
nonavailability of the designated organization's members must, certainly, be consid-
ered limited; the document in question provides that no such clearances shall be
granted-regardless of the circumstances noted-unless Respondent Union: (1)
has been notified "by the end of the previous working day" with respect to Joint
Venture's need for men; and (2) has not been able to supply such men by the com-
mencement of the current working day.
The relationship between Respondent Union's 'limited contractual obligation to
grant clearances for members of other locals whenever none of its own members can
be referred, and its concomitant obligation to grant such clearances, generally, when-
ever some "fair percentage" of Joint Venture's crew consists of Respondent Union's
members, certainly cannot be considered clear. (Reflection will readily bring to mind
circumstances under which these disparate contractual obligations might require
different courses of conduct ; nothing in the record suggests that any consensus has
been reached with regard to the standards which might be followed to resolve such
dilemmas. ) Nevertheless , there can be no doubt that these contractual provisions-
though they may not, specifically, set up Respondent Union as Joint -Venture's ex-
clusive referral source-establish preferential employment privileges for Respond-
ent Union's members. On their face, such contractual requirements-without
regard to their lack of any specific reference to the referral of nonmembers of
Respondent Union or some sister local-contravene the statute. Local 1486, Broth-
erhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Stratford-
at-Babylon, Inc.), 132 NLRB 803, 817. I so find.
Article XI of Respondent Union's contract with Joint Venture provides, properly,
-that membership in the contractually bound union "shall not be a condition of em-
ployment" for bricklayers or stonemasons . The agreement , however , does go on
to provide, further, that: -
.. . membership in the union shall be a condition of continued employment
seven (7) days after the beginning of such employment or the effective date
of this agreement, whichever is later. - [Emphasis supplied.]
Such a contractual union-security provision clearly exceeds permissible limits. Sec-
tion 8 ( f)(2) of the statute does provide, inter alia, that it shall not be unlawful for
parties to execute a contract within the -building and construction industry which
requires as a condition of employment membership in a union "after the , ,seventh
day" following the beginning-of employment . (Clearly, this provision legitimatizes
contracts which require union membership commencing with the beginning of the
eighth day following the beginning of a worker's employment or the execution date
of the contracts, whichever is later.) The contract clause now under consideration,
however, requires such membership "seven (7) days after" the beginning of em-
ployment. Such a clause, considered on its face, clearly fails to provide the full
-seven-day grace period which the statute requires before employees may be com-
pelled to become union members. Gladys A. Juett, administratrix of the estate of
C. D. Juett, deceased, 137 NLRB 395; J. W. Bateson Company, Inc., 134 NLRB
1654 . The clause , in question , therefore , clearly contravenes Section 8 (f)(2) pre-
viously noted. -
The -contractual provisions under consideration , further, include commitments by
the parties that no person shall "work with the tools" or perform certain designated
work tasks except members of "B.M. & P.I.U. of A." the Respondent Union's parent
organization. True, such contractual requirements have been set forth subject to
the provision, previously noted, which fixes membership in respondent labor orga-
'niiation as a condition of continued employment "seven days after" the beginning of
such employment or the contract's effective date. Such language of limitation; how-
ever, cannot save the subsequent contractual provisions with which' we are now
concerned from proscription: - Since the contractual requirement with respect to mem-
bership in Respondent labor organization-previously noted-goes beyond permis-
sible limits, the fact that some related union membership requirements may be con-
tractually declared "subject" thereto , cannot render such related requirements valid.
SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS,-ETC. 1325
Further "B.M. & P.I.U. of A.",membership may clearly be secured or held by'brick-
layers holding membership in sister locals regardless of their failure to seek mem-
bership in Respondent labor organization ; since the contractual provisions now in
question purport to limit "work with the tools" together with the privilege of per-
forming certain designated work tasks to members of Respondent Union's parent-
without allowing such persons-any grace period whatever, consistent with statutory
requirements, within which to seek such membership-they must be considered;
pro tanto, invalid. (To the extent that Respondent Union's constitutional working
code-made part of Joint Venture's contract by reference-would likewise, substan-
tially, require the performance of certain work tasks by members of Respondent
labor organization's parent body, such provisions would also seem to be subject to
proscription; I so find. Further, to the extent that certain parallel provisions of the
challenged working code purport to limit the privilege of performing certain work
tasks to "members of this union" or "brother members," without a reference to their
right to claim the statutorily prescribed grace period, such provisions must be con-
sidered'lacking in validity for reasons previously noted.) With respect to foremen,
Respondent Union's constitutional working code requires "B M. & P.I.U. of A." mem-
bership. Further, Respondent Union's code-made part of Joint Venture's contract
by reference-confers upon foremen "sole authority" to hire and discharge all men
under their supervision, and to lay out all masonry work. Taken together, these
"contractual" provisions-contrary to General Counsel's contention-cannot be said
to contravene the statute. - Evans v. International Typographical Union (American
Newspaper Publishers Assn.), 81 F. Supp. 674-675, 683-685; cf. International
Typographical Union (American Newspaper Publishers Assn.), 86 NLRB 951,
1019-1020. Within Respondent Union's working code, however, the provisions in
question are coupled with a provision that any foreman:
who through intimidation or otherwise intentionally causes any of his
men to violate any section of the Constitution, By-Laws, rules and regulations
of this Union, the State Conference or the International Union ... .
may be fined or disbarred from functioning as a foreman within the organization's
territorial jurisdiction. Since, therefore, foremen could be conceivably subjected to
union discipline , pursuant to this provision, should they require Respondent Union's
members to work with persons who cannot qualify as "brother members" or mem-
bers of Respondent labor organization's parent body, these portions of the code
now under consideration, considered as a totality, seem to establish closed-shop
conditions. Cf. Houston Maritime Association, Inc., Master Stevedore Association
of Texas, 136 NLRB 1222. To the extent, therefore, that foremen-because of
these related provisions-may be required to establish and maintain such conditions
upon pain of discipline , the challenged provisions must be considered violative of the
statute.
B. Contested matters
1. Respondent Union's claimed closed-shop practice
General Counsel contends that throughout the period with which this case is con-
cerned, Respondent Union and Joint Venture have-together with the maintenance
and enforcement of their collective-bargaining contract-maintained a practice,
arrangement, and/or understanding which requires that all covered workers shall be
"hired, assigned to their employment and discharged" by and through Respondent
Union exclusively, or that all such workers shall be and remain Respondent Union's
members. Counsel for Respondent Union, however, vigorously denies its mainte-
nance, together with Joint Venture, of any such practice, arrangement, or consensus.
With respect to this portion of his case, General Counsel presents merely the
testimony of Edward Miranda, Joint Venture's assistant superintendent of masonry
for the Federal office building project. When this case was heard, Miranda held
the designated post as Herbert Mickelson's successor. (General Counsel, presuma-
bly, would contend that testimony proffered by various witnesses with respect to
Joint Venture's termination of Arthur G. Warner, the complainant herein, further
reflects that firm's maintenance, together with Respondent Union herein, of the
closed-shop practice, arrangement, or consensus previously described. The circum-
stances of Warner's termination, however, will be considered' subsequently within
this Decision ) Questioned with respect to his hiring procedure, Miranda testified
that he maintains membership in Respondent Union; that he may hire and fire brick-
layers and stonemasons; and that he routinely seeks referrals from Respondent
Union's business representative whenever men are needed for masonry work.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During direct examination Miranda testified that-whenever respondent labor
organization cannot supply men-jobsite applicants will be hired "off the bank" but
that . Respondent Union 's business representative will thereafter be notified. He
declared , categorically, that he -hired men "off the bank" only when Respondent
Union had none to refer . According to Joint Venture 's assistant superintendent, his
procedure reflects compliance with Respondent Union 's contract and comports with
common trade practice.
During cross-examination , however , Miranda conceded that-while a foreman on
other projects-he had hired men "off the bank " without first checking to determine
whether qualified workers could be secured from Respondent Union 's hall.
Such testimony could conceivably sustain a determination that-with respect to
the Federal office building project at least-management representatives of Joint
Venture routinely considered Respondent Union their exclusive or preferred labor
supply source . Clearly, however , Miranda's recitals cannot be considered to pro-
vide reliable , probative , or substantial evidence that Joint Venture's masonry work-
ers were required to be and remain members of Respondent labor organization.
Considered as a whole, the present record would , rather , warrant a contrary con-
clusion. The assistant superintendent 's testimony reveals that, since he assumed
his present post, he has hired only two masonry workers for Joint Venture's project;
both of these were truly referred by Respondent Union 's business representative.
(Other record testimony , however, would warrant a determination that at least two
Federal building masonry workers-possibly more-had previously been hired at
the jobsite , without regard for the presumptive availability of members seeking work
through Respondent Union 's hall.) Credible testimony proffered by Representative
Canavan-which stands in the record without contradiction-reveals, nevertheless,
that he has-since becoming Respondent Union 's business representative in Janu-
ary 1963, specifically-referred two. men for Federal office building work who were
not then "B.M. & P.I .U. of A." members. Further , credible testimony proffered,
without contradiction , reveals that , when Arthur G. Warner was terminated by
Joint Venture's superintendent of bricklayers , under circumstances to be noted sub-
sequently within this Decision , -2 members of Joint Venture's remaining 11-man
masonry - crew held membership in Local 8 , located in Oakland , California, which
Respondent Union 's members consider a designated "outside" local. So far as
the record shows, neither of these workers ever was "pulled off" his Federal build-
ing work pursuant to Respondent Union 's request . ( One member of Local 8 re-
signed his job voluntarily on March 5th; the other was laid off for lack of work
on March 20th. ) During cross-examination , further, Miranda testified that-despite
the contractual clearance requirements with which Joint Venture must, theoretically,
comply-no clearances have . been required before members of Respondent Union's
sister locals begin work ; Joint Venture 's assistant superintendent of masonry like-
wise conceded , credibly, that he has never known Respondent Union to "pull off"
workers, currently employed on construction projects, because they did not hold
membership therein.
Considered , further, within the context of Respondent Union 's larger concerns,
that body's practice with respect to work on Joint Venture's project cannot be.con-
sidered unique . Credible testimony , proffered without contradiction, reveals that
most San Francisco local members solicit their own jobs, most of the time, while
visiting construction project sites . (Business Representative Canavan testified credi-
bly that Respondent Union, presently has some 560 members. Their job tenure,
with respect to particular projects, averages 2 or 21/2 weeks, approximately. Re-
spondent Union's entire membership, therefore , presumptively shifts jobs one or two
times per month , with some shifting more frequently and some committed to steady
work . Despite this statistic , Canavan-since his designation as Respondent Union's
business representative-has'referred no more than 32 men for work , monthly. Ac-
cording to Canavan , determination would be warranted that most of the San
Francisco local's members "hustled" their own jobs. ) Further, despite Miranda's
declaration that he routinely notifies Respondent Union when hiring masonry work-
ers at the project site , most foremen-according to Canavan 's testimony , proffered
without contradiction-give no such notice . Such loosely regulated hiring prac-
tices-so the record shows-have permitted many members of sister locals to secure
work on construction projects within Respondent Union's territorial jurisdiction.
(Reference has previously been made to Miranda 's testimonial concession that, de-
spite contractual requirements , no clearances have been required as a condition
precedent for the employment of masonry workers holding membership in sister
locals. Further , he conceded prior experience as a job steward on projects within
Respondent Union's jurisdiction where numerous members of sister locals were
given work ; many such men, Miranda reported , have worked "substantial amounts-
SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS, ETC. 1327
of time", within Respondent Union's territory.) Respondent Union's willingness to
tolerate the condition described -may be presumed. Business Representative Ca-
navan , when -queried as Respondent Union' s witness , cited five masonry, contrac-
tors-privy either to the collective-bargaining contract between Respondent Union
and Association, previously noted, or some similar form contract-whose crews,
within recent months, have included a substantial number of masonry workers hold-
ing membership in sister locals. Person and Wik, one such contractor-currently
engaged for masonry work on the Hilton Hotel, a large San Francisco construction
project-had a 14-man crew when last checked by Respondent Union' s business
representative; 6 of these held membership in some "outside" local.- (Canavan
credibly testified, further, that another masonry contractor, Langeberg-currently
engaged for the San Francisco Civic Auditorium renovation project-had "mostly"
Local 8 members.) Respondent Union's business representative reported for the
record, without contradiction, that Person and Wik, together with other masonry
contractors, have been "running" jobs within this 'organization's geographical terri-
tory with "outside" local members while, members of his local have been "on the
bench" without work.
Questioned with respect to Respondent Union's general referral practice, Canavan
further testified credibly that-since-his January 1963 designation as business repre-
sentative-13 qualified bricklayers lacking any known membership status whatever,
within Respondent Union's parent body, have been dispatched for work through the
organization's hall; some of these referrals, Canavan declared, were made despite
the availability of Local 7 men "on the bench" without work. During Febru-
ary 1963 specifically-within which month Warner's termination, discussed herein-
after, took place-Respondent Union's dispatch record shows that Business
Representative Canavan referred nine of its members for work. During the, same
period, however, he dispatched.five bricklayers who were not members of the San
Francisco local; one of these was dispatched for work twice. According to Respond-
ent Union's business representative, some members of respondent labor organization
were, then, without work and available for referral.
With matters in this posture, Canavan's generalized concession that he exercises
"discretion" with respect to the dispatch of masonry workers; that he abides by
Respondent Union's rules; and that he expects other members, foremen included, to
do likewise, can hardly be said to reveal a consensus, which Joint Venture purport-
edly shared, relative to closed or preferential shop conditions for the Federal build-
ing project.
By way of summary: Canavan testified credibly that Respondent Union currently
maintains collective-bargaining contracts with some 145 to 155 masonry contractors.
Each of these contractors has "run" some job, or more than one, within Respondent
Union's territorial jurisdiction during the current calendar year. Something more
than 50 percent of these contractors, however, have "never" called respondent labor
organization for bricklayers. With respect to converse matters, Joint Venture's as-
sistantsuperintendent, Miranda, summoned as General Counsel's witness, testified
during cross-examination that-within the past 14 years-he has secured 50 percerj
of his jobs through personal solicitation at project sites. And so far as the record
shows, Miranda's pattern of conduct, with respect to his work searches, reflects gen-
eral practice. Taken by and large, therefore, the present record can hardly be
found to reflect Respondent Union's recognition by most San Francisco masonry
contractors as their exclusive or preferred labor supply source; nor, conversely,
can it be said to reveal any real disposition by respondent labor organization's
members to rely upon their local as a primary job source. Reference has previously
been made to Miranda's further concession, during cross-examination, that he has
"never" known Respondent Union to pull men off construction projects because of
their failure to acquire or retain local membership. Credible testimony, proffered
and received without contradiction, reveals, rather, that Respondent Union's present
business representative has, with some frequency, referred both nonmembers of his
Local's parent body, and members of sister locals, for work within respondent labor
organization's territory.
With matters in this posture, General Counsel can hardly be found to have
proven-through a testimonial preponderance-that Respondent Union, together
with Joint Venture, maintained or effectuated any proscribed "practice, arrange-
ment, and/or understanding" pursuant to which workers covered by their contract
were to be hired, given work, and discharged by and through Respondent Union ex-
clusively. Nor can General Counsel's representative be found to have sustained the
requisite burden of proof with respect to his concurrent contention that Respondent
Union and Joint Venture, throughout the period with which this case is concerned,
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained any practice, arrangement, or consensus pursuant to which= Joint- Ven-
ture's masonry workers were required to be and remain members in good standing
,of respondent labor organization.
2. Arthur G. Warner's termination
a. Background
Warner-sometimes designated as complainant in this decision-has been a brick-
layer for 22 years. His Bricklayers International membership, with particular ref-
erence to his present book, dates back to 1953; so far as the record shows, his
membership, since that date, has been maintained in several different locals. Some-
time before 1959, Warner functioned as a masonry contractor in Reno, Nevada.
When work on his Reno project terminated, the complainant transferred his mem-
bership to Local 13 of Bricklayers International, located in Long Beach, California;
the maintained local membership there, I find, for approximately 2 years.
Sometime during October 1962 Warner took up residence in the San Francisco
Bay area and secured employment with one Groskin, a masonry contractor head-
quartered in San Jose, California. While in Groskin's hire-during the latter part
of November, specifically-he was promoted to the post of bricklayer foreman, for
the firm's current residential tract construction project located in San Bruno, Cali-
-fornia, within Respondent Union's territorial jurisdiction.
Early in January 1963 Canavan-newly elected as Respondent Union's business
rrepresentative-visited Groskin's San Bruno project; there, Warner and he rec-
ognized each other. (Canavan had worked on Warner's Reno project. His testi-
mony, proffered and received without contradiction, reveals that his relationship with
Warner, there, had been friendly.) Canavan requested Warner to call Respondent
Union if he needed any men. Concurrently, I find, he advised Warner to transfer
this membership from their parent organization's Local 13 in Long Beach, Califor-
nia, to Respondent Union herein.
b. Warner's hire by Joint Venture
On or about Wednesday, January 16, Bricklayer Superintendent Mickelson in-
vited Canavan to visit the Federal office building project, so that Project Superintend-
ent Gehron could meet him. At Mickelson's request, Canavan came to the project
sometime before his scheduled conference with Gehron. The bricklayer super-
intendent reported that Joint Venture's project superintendent had recently requested
him to procure eight additional bricklayers; Mickelson confessed, however, that
Gehron had been told there were none available. He requested Canavan to "cover
up for him" during his forthcoming talk with Gehron. When Canavan met Joint
Venture's project superintendent, Gehron did request the dispatch of eight men forth-
with. Canavan declared that the bricklayers Joint Venture needed would have to
be procured from other projects. (While a witness, Canavan testified that his
promise to "pull" men from other projects to meet Gehron's request was proffered
to "cover up" for Mickelson, since he did not expect that he would be required to
procure every man Joint Venture needed in this manner. General Counsel con-
tends that the business representative's proclaimed readiness to tell "just a little
fib to keep a guy from getting into trouble" demonstrates his total unreliability as a
witness. Considered in context, however, Canavan's declaration that he would
have to procure men from other projects reflects no significant deviation from truth.
While a witness, Canavan generally demonstrated frankness and lack of guile, with
respect to material aspects of the matter under consideration. His concession that
he told "fibs" calculated to protect Joint Venture's bricklayer superintendent-which
he coupled with a declared readiness to do likewise for General Counsel's representa-
tive-persuasively reveals a rough-and-ready character, basically disposed toward
friendly accommodations with people. Particularly when considered in conjunc-
tion with his quietly prideful declaration, when challenged, that, "I don't lie for
myself. I don't have to," Canavan's testimonial concession that he told "just a
little fib" for Mickelson's benefit will not, in my opinion, warrant a conclusion that
he was disposed to deliberate mendacity in material matters.) He promised, how-
ever, to procure three men for Joint Venture's project by Friday, January 18, declar-
ing that the rest of the men needed would be dispatched by the beginning of the
following week.
Canavan was able to dispatch one bricklayer, Istanvich by name, on Thursday,
January 17; three other masonry workers were referred on January 18, and four
more on Monday thereafter. None of the men dispatched were then seeking work
personally through Respondent Union's hall; Canavan solicited some for Joint
SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS, ETC. 1329
Venture's project by telephone calls directed to their homes, and procured the rest
from a different project, with their foreman's concurrence. (There is a record
suggestion that Respondent Union's business representative may have procured these
workers from the previously mentioned "Groskin" project; this would mean that
Warner, then a Groskin bricklayer foreman, may have been the supervisor whose
cooperation was sought. The record, however, will not sustain such a conclusion,
definitively.) Canavan testified credibly that Superintendent Gehron had been told
these eight bricklayers would only be dispatched upon Joint Venture's commitment
that their employment would not be a "hiring and firing" deal; by this he meant to
solicit a promise that their services would be required for some substantial period
of time. His testimony warrants a conclusion that Gehron promised, if men were
dispatched, to keep the work going.
c. Warner's employment by Joint Venture
On January 19 Warner resigned his position as Groskin's bricklayer foreman; so
far as the record shows, he did so when he learned that a supervisor had preempted
his authority to discharge a man. Shortly after his resignation, Warner consulted
Canavan; Respondent Union's business representative told him, inter alia, that he
might have some justification for a monetary claim against Groskin since his rate of
pay as the latter's bricklayer foreman had reflected a smaller premium-over the
wage rates of masonry workers he had supervised-than contractors customarily
paid within Respondent Union's jurisdiction. Sometime between January 19 and
24 Canavan drove Warner to San Bruno for the purpose of investigating the latter's
possible grievance. (During direct examination, Canavan testified that while en
route to Groskin's project, he stopped at two other jobs for the purpose, inter alia,
,of soliciting employment for Warner. Within his brief, General Counsel contends
that Warner denied this; General Counsel's record citation, however, merely reflects
the complainant's passing reference to Canavan's trip; his testimony about stops
en route, pro or con, was not solicited. True, Canavan-when questioned in cross-
examination-could not recall the specific tracts which he had visited in Warner's
behalf. His failure of memory was reasonably explained, however. With the
record in its present posture, no persuasive warrant appears for General Counsel's
accusatory declaration that Canavan failed to specify the tracts because rebuttal
testimony could have been proffered to show that his testimony regarding the pur-
ported visits was "completely" fabricated.) On January 23 Warner visited the Fed-
eral office building project in search of work. Bricklayer Superintendent Mickelson
was not available; his foreman, George Combs, told Warner, however, that he might
possibly secure work.
Thereafter, the complainant visited Respondent Union's office on January 24 and
requested Canavan's "clearance" for Federal office building work. The business
representative, concededly, gave him a note which read as follows:
HERB : _
If you have room for Art Werner [sic], I'd appreciate it if you would put
him to work. Don't lay anyone off to do it. 1-24-63
P.S.
No hiring on the Bank-hire through the Union.
(S) PAT CANAVAN,
Business Representative.
When Warner presented this note, Mickelson declared that he did not need any
men currently, but would call him in the future.
The next day, January 25, Joint Venture terminated four masonry workers. Those
terminated were Istanvich (who had been hired January 17); Rowley and Kedera
(two January 18 hires); and Colgan (one of Joint Venture's four January 21 hires).
Joint Venture's payroll records show that the next day-Saturday, January 26-
one new worker, Braun, was hired. Thereafter, on Monday, February 4, two more
January 21 hires, Highsmith and McGrath, were laid off, while one new masonry
worker, Genovese, was hired. (Canavan's dispatch records, which he started to
keep on January 28 approximately, show that Genovese was dispatched from Re-
spondent Union's office. The business representative's testimony, however, reveals
that he [Genovese] had previously sought and received a promise of work from
Mickelson.) During the evening of February 5, Warner received a telephone call
from James Burns, one of Joint Venture's January 21 hires; the complainant was
760-577-65-vol. 148-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised that Mickelson would be able to give him work the next day. On February6
Warner reported and was hired for work on the Federal office building project.
Concurrently , another worker , Barhes, was hired . Nothing in the record would
support a determination with respect to his union , membership status; Canavan 's fail-
ure to mention his name, however, when listing the workers dispatched from Re-
spondent Union's hall during February particularly, would presumably warrant a
conclusion that Barhes was hired "off the bank" by Joint Venture 's bricklayer super-
intendent . I so find.
Testimony by Warner, proffered without contradiction, reveals that Respondent
Union's steward for the Federal office building project requested that he-produce his
union book on February 6; the complainant explained that he did not have his book
with him, since he had forwarded it to his Long Beach local with his dues. When
the steward later renewed his request for the production of Warner's book on
February 7, he was told that the book had not yet been returned. Warner was told
finally to produce it for inspection, when he received it.
On February 7 also, Joint Venture hired another masonry worker; Jack Write,
with membership in Local 8 of Respondent Union's parent body. So far as the
record shows, Write was not referred or dispatched through Respondent Union's hall.
d. Warner's discharge
Between 10:30 and 11 a.m. on Friday, February 8, Canavan, accompanied by
President Dan Sweeney of Respondent Union, visited the Federal office building
project and spoke with Mickelson. The business representative's testimony-
proffered without contradiction-reveals that he became involved in an argument
with Joint Venture's bricklayer superintendent because the latter had just laid off six
of the eight men whom he (Canavan) had previously dispatched at Project Super-
intendent Gehron's request. Mickelson, according to Canavan, attempted to justify
his conduct by declaring that some of the men were poorly qualified ; this disparage-
ment was hotly contested by Respondent Union's business representative. (Though
General Counsel has suggested that Canavan's version of his February 8 conversa-
tion with Mickelson reflects his "self-admitted tendency to deviate from the truth"
no testimony has been proffered to contradict the significant parts of his recital.
Mickelson, though a San Francisco resident and presumably available for testimony,
was not summoned . For reasons to be noted elsewhere in this Decision , Canavan's
testimony-despite General Counsel 's animadversions with respect thereto-has been
credited .) Mickelson then declared the men were terminated because he "didn't
have any more room "; when Canavan countered that he had heard new men were
being hired , Joint Venture 's bricklayer superintendent merely shrugged his shoulders.
President Sweeney testified further that Canavan and Mickelson argued, likewise,
about men whom Joint, Venture's bricklayer' superintendent had hired directly.
(Within his brief, General Counsel ' suggests that Warner, who had been hired by
Mickelson 2 days previously, was the man whose hire "on the bank" had aroused
Canavan 's ire . The record , however , suggests that Canavan could conceivably
have- had Genovese and Barhes , possibly even Braun , likewise in mind.) Canavan
denied categorically that-during the course of his conversation with Joint Venture's
bricklayer superintendent-the latter was told, specifically or by implication, to effec-
tuate Warner's termination. The record reflects his vigorously held conviction, in-
deed , that Warner 's name was not even mentioned during the conversation in question.
With due regard for the record, considered as a whole-coupled with my observa-
tion of the witness-I find the testimony of Respondent Union 's business representa-
tive, in this respect, credible.
Shortly after Canavan and Sweeney left, Mickelson spoke to ' Burns; according to
testimony which the latter proffered without contradiction , Joint Venture 's brick-
layer superintendent said, "What is the' matter with your friend, Art ,Warner?
Canavan and Sweeney were here and 'they, told' me'he was in trouble with, the
Union and that I would have to let him 'go today." Burns,'' however; 'disclaimed
any knowledge in the premises and declared that whatever course of action Mickel-
son took would be his responsibility. He (Burns) made no effort to communicate
with Warner.
Early that afternoon, about 1 o'clock, Mickelson gave Warner his.regular pay;
since Joint Venture normally paid workers on Friday, for a workweek ending the
Wednesday previous, Warner received a check for 1 day's work.' . Nothing was said
about his job tenure. About 2:30 p .m., however , Mickelson summoned Warner
from the scaffold where he was then working, • took him aside, and informed him
SUBORDINATE UNION' 7 OF CALIF'., BRICI1LAYERS, ETC. 1331
that Joint - Venture would have to lay, him off because Canavan and Sweeney, had
given orders to that effect- Warner 's testimony with respect -to this conversation,
which the record provides no'reason to doubt, reads as follows:
Mr. Mickelson said, "Art, I hate like hell to do this to you, but I have got to
lay you off," and I said, "What for?" He said, "Pat Canavan and Don
Sweeney were down here this morning and they said you were in trouble with
the Union." I said, "I have never been in trouble with a union in my life."
I said, "What did they say?" He said, "I don't know." He handed me my
check and we walked through the door . . . I said, "Can't you tell me what
they said?" He said, "I don't know what the trouble is. The only trouble
is that you are in trouble with the Union and you had to be pulled off the job."
When Warner attempted to resume work, Mickelson dissuaded him, suggesting that
he forthwith get in touch with one of Respondent Union's officials and straighten out
his difficulty. Responding to Warner's questions, Mickelson declared that there was
nothing wrong with his work, that he got along well with the men, and that if he
(Warner) could resolve his problems with Respondent Union he could resume work
Monday morning. Warner was then given a second check, to compensate him for
his work through the 8th of themonth.
Warner then left the project. Several of his attempts to reach Canavan or some
other union official by telephone were unsuccessful. Finally, at 5:30 p.m., Warner
reached Canavan by telephone; Canavan was then home.
The business representative's version of the conversation which ensued was that
Warner raised "Holy Cain" with him for causing his (Warner's) layoff at the Fed-
eral office building project. Canavan, according to his testimony, denied the charge.
While a witness, Canavan declared that Warner was told, "I didn't even know you
were there." Warner, allegedly, reported that Mickelson had told him he was being
laid off because of union trouble . According to Canavan:
He told me that Mickelson had said that . I said , "I don 't know why he said
that, but I didn't say that. I was with Mr. Sweeney and I was making a run
of the job. ["] I said, "I didn't say a darned thing about you on the job. I
I didn't even know you were on the job."
When the complainant allegedly refused to credit his protestations , Canavan testified
that he terminated their conversation . Warner, however, has given a completely
different testimonial account of this conversation : According ! to the complainant,
Canavan, when asked why Warner had been pulled off the Federal office building
project , replied, "Because I have No . 7 men loafing in the hall ," and, "You have not
deposited your book in No. 7 yet." Warner,, according'to his testimony, protested
that his book was not currently available since he had mailed his dues to the Long
Beach local. Canavan allegedly replied that Warner had - had plenty of time to
transfer his card. When Canavan purportedly persisted in' declaring that Warner
had been pulled off the job because, there were Local _7 men "loafing" -without,work,
Warner , so he testified , challenged Canavan 's failure to pull Jack Write off the' job
simultaneously . (Write,. it will be recalled, . was the Local r8 member whom
Mickelson had hired I day after ,Warner - had•started work .) ', Canavan purportedly
denied any knowledge that Write ' had been employed on the project; Warner testified
that he had reaffirmed the fact, and. that * he had, protested' Write. 'should, be pulled
off the same as - I. was pulled off since he, too , had ,bean hired outside his home
local's territorial jurisdiction . When ' Canavan allegedly repeated his declaration
that No . 7 men were "loafing" in Respondent `Union 's hall, and that Warner was
not a Local 7 member, Warner 'testified that lie terminated the conversation.
This testimonial conflict . clearly requires ' a , credibility determination 'which may
well be substantially depositive of the present case . Should Cana'van's recital` with
respect to the substance of'this telephone conversation be'fourid . credible , Mickel-
son's purported February 8 declaration to Warner regarding the reason for his
layoff-which everyone concerned seemingly 'concedes that Joint Venture's brick-
layer superintendent made=would patentlyrmerit characterization as his ' completely
voluntary statement; no responsibility for any sort of communication presumably
calculated to cause discrimination against Warner could be laid at Respondent
Union's door. Should Warner's"version; however, be ciedited,,Canavan's purported
concession that the complainant had been "pulled off" the Federal' office building
project, because (1) some members of Respondent Union were not working, and
(2) he had 'not transferred.his membership, might' reasonably be considered suf-
ficient to justify a derivative determination that Respondent Union's business repre-
sentative had really requested Warner's termination on such grounds, and, further,
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Mickelson's purported February 8 declaration truthfully reflected such a clear-
cut "inducing communication" from Canavan personally. See N.L.R.B. V. St. Joe
Paper Co., 319 F. 2d 819 (C.A. 2), enfg. 135 NLRB 1340. Such a determination
certainly seems to be sought; within his brief, General Counsel's representative con-
tends that Canavan's verbal concessions during the telephone conversation in ques-
tion, with respect to his motivation, call for a determination that representations or
demands consistent therewith were made to Joint Venture's bricklayer superintendent.
With the record in its present posture, however, Warner's version of his February 8
telephone conversation with Respondent Union's business representative must be
rejected. Canavan's recollection of their talk rings true, not only because of his
demeanor while a witness but likewise because his version seems more consistent
with his general course of conduct.
My determination with respect to this facet of the present case, however, cer-
tainly has not been easily reached. Warner's testimony was proffered forthrightly,
with a crisp, incisive manner, well calculated to carry conviction; clearly, he be-
lieved himself to be telling the truth and considered himself thoroughly clad with the
armor of a righteous cause. Respondent Union's business representative, on the
other hand, frequently rambled; though not deliberately evasive with respect to mate-
rial matters, he was certainly discursive to a degree calculated to test the limits of
patience. With respect to certain minor matters, peripheral to various major ques-
tions presented in this case, Canavan candidly revealed a readiness to tell "fibs" when
he considered them harmless, inconsequential, or likely to help people. Yet, withal,
Respondent Union's business representative stands revealed as thoroughly human,
volatile in temperament but basically warmhearted and completely without guile.
Considered as a whole, the record does reveal his since belief that masonry work-
ers working regularly within Respondent Union's geographical jurisdiction would
be well advised to transfer their membership from sister locals; further, determina-
tion would certainly seem justified that, because of his official capacity, he deplored
hiring "off the bank" generally. Nothing in the present record, however, aside from
Warner's testimony-which James Burns partially corroborated-would warrant a
derivative determination that he would be likely to demand the discharge of work-
ers who may have been hired by foremen directly, or workers with membership
maintained in sister locals, merely to promote the proliferation of Respondent
Union's membership -roll, or to promote its recognition as an exclusive manpower
referral agency for contractually bound masonry contractors. For these reasons-
some of which will be elaborated further within this Decision-Canavan's reported
recollection with respect to his February 8 telephone conversation with Warner has
impressed me as most worthy of credit.
On Saturday, February 9, Canavan telephoned Mickelson; Joint Venture's brick-
layer superintendent was, asked why Warner had been told that he (Canavan) had
requested the latter's termination. According to Respondent Union's business repre-
sentative, Mickelson promptly denied making any such statement when Warner was
terminated. Canavan's further testimony regarding their conversation, which I
credit, reads as follows:
I said , "Listen , let us get this thing straight . Every man that I ever sent over
to you, or put my name on anything for you, that you hired on that job, every-
one of them has been laid off." I said , "What comes off?" He said , "It isn't
anything like that ." . He said, "I am caught up." I said , "I will repeat
it again, every man I send over to you, you have fired or laid off with some
excuse . What I am so mad about is that Warner is mad at me and he states
that you said he was in trouble with the Union . I have known him from Reno
and I met him on the Groskin job. I had no falling out with Warner until he
heard something from you that he was in trouble with the Union. Warner was
never in trouble with the Union, but you are in trouble with me," and I hung
the phone up.
General Counsel seeks to impugn Canavan's testimony generally , by reference to
his prior sworn statement ; therein, Canavan had declared, "I never discussed Warner's
employment with Mickelson or contacted him about it except for the note written
about January 24, 1963." Confronted with this declaration, Canavan conceded
lack of consistency but maintained the validity of his testimonial recollection; he
testified credibly that his prior statement had been given under distracting circum-
stances, and that his failure to mention this February 9 conversation with Joint
Venture's bricklayer superintendent, when giving it, merely reflected a failure of recol-
lection. With respect to this facet of the case, Canavan impressed me as com-
pletely candid; under the circumstances, his declaration that he would put "more"
SUBORDINATE UNION 7 OF CALIF. ; BRICKLAYERS , ETC. 1333
material , or "different" phrases, into his statement if questioned again cannot , persua-
sively , be challenged as reflective of some questionable disposition to change a pre-
viously reported version of relevant developments to better suit his purpose. With
matters in this posture, I have credited Canavan's testimony relative to his Febru-
ary 9 conversation with Mickelson, noted.
e. Subsequent developments
Early on Monday, February 11, Warner visited Respondent Union's office. Rel-
evant testimony regarding his conversation with Canavan there, once more reflects
conflict. Warner testified: (1) That Canavan referred to article VIII of Respondent
Union's contract with Joint Venture, declaring that Respondent Union was bound
by that provision; (2) that Canavan further reiterated his prior declaration that
Warner was "pulled off" the Federal office building project because Respondent
Union had members "loafing" in the" hall; (3) that Canavan questioned Warner
again as to whether his union book had been returned, and whether he was going
to transfer his local membership. Canavan testified, contrariwise, that Warner
renewed his accusation relative to the responsibility of Respondent Union's business
representative for his layoff; that he (Canavan) repeated his prior denial; that he
professed surprise at Warner's readiness to take Mickelson's word; that be (Canavan)
told Warner, "the only one that was in trouble with the Union was Mickelson and
not him"; but that Warner refused to accept such reassurances. (Warner, during
this visit-so far as the record shows-made no specific request for referral back to
his Federal office building job; nor does he seem to have requested referral else-
where. Whatever the fact may be, he was not dispatched. Testimonial and docu-
mentary records otherwise show that Canavan did, refer two bricklayers, Normack
and Sclick, to jobs, and that Mickelson hired Ralph Pizzella directly, for Federal
office building work, without requesting his referral from Respondent Union's
office. Pizzella stands identified for the present record as a member of Respondent
Union's board of trustees.) For reasons previously noted, Canavan's testimony
regarding this February 11 conversation is credited. General Counsel suggests that
the subsequent failure of Respondent Union's business representative to prefer
charges against Mickelson, based upon this contretemps, should be considered suf-
ficient to impugn his testimony that he inveighed against Joint Venture's bricklayer
superintendent during the conversation now under consideration. Upon the entire
record, however, whatever reasons Canavan may have had for his failure to bring
charges against Mickelson remain a subject for conjecture; General Counsel's con-
tention that he refrained because Mickelson had merely followed his directive with
respect to Warner's discharge, certainly cannot be treated as proven. Ergo, General
Counsel's derivative contention that Canavan's testimony regarding his criticism of
Mickelson should not be believed, can hardly be considered persuasive.
On Tuesday morning, February 12, Warner revisited Respondent Union's hall.
He testified that he was there to seek work, but the record contains no testimony
that his desire was communicated to Respondent Union's business representative.
Whatever the situation may have been, no men seem to have been dispatched that
day. Warner then called upon Mickelson at Joint Venture's project. His testimony
with respect to their conversation reads as follows:
I proceeded to tell him that I had gone in and talked to Pat and that Pat had
told me that he had men loafing in the hall and that he couldn't send me back
on the job, that he wouldn't give me a slip to come back on the job because he
had men loafing in the hall and that I had not transferred my book into the
local as yet. I told Mr. Mickelson that I was going up to see what could be
done about it and he said, "I don't blame you. I think Local No. 7 did
you unfair."
Warner's testimony that he made such a report to Joint Venture's bricklayer super-
intendent may merit credit. His -prior testimony regarding his February 12 visit,
however, contained no reference to Canavan's purported refusal to refer him back
for work on Joint Venture's project; during direct examination, he had testified
merely that Canavan "just completely ignored" him. (Though Canavan subse-
quently did concede that Warner had-sometime-declared his desire to resume
work on Joint Venture's project, no date was fixed. Nothing in the record, beyond
Warner's statement, will warrant a determination that such a request was presented
during his February 12 visit to Respondent Union's hall.) With the record in its
present posture, therefore, no determination would be warranted that Canavan refused
to refer Warner back for Federal office building work during the visit in question.
1334 DECISIONS ,OF NATIONAL LABOR, RELATIONS BOARD
That night, Warner-together -with his son and James Burns, his friend and fel-
low worker-attended Respondent Union's regular business meeting: Nominally,
the complainant was there, for the purpose, of pressing, before Respondent Union's
arbitration board, `his, prior grievance-filed at Canavan's suggestion-regarding his
rate of pay while a supervisor on Groskin;s project. (Several Groskin representa-
tives had been invited to state their firm's position with respect to Warner's claim.
These representatives were also present.) When the meeting began, Respondent
Union's business proceeded routinely. Shortly before Warner's grievance was due
for consideration, however, Chairman Ed Sweeney of the Union's arbitration board,
became very unruly. (Within his brief, General Counsel's representative-with
soft impeachment-has declared that, Sweeney was apparently -not himself; most of
those present, so the record shows, considered him under the influence of liquor.)
Union President Dan Sweeney called a recess to restore order. Warner and
Groskin's representatives were supposed to meet Respondent Union's arbitration
board within a separate office. ' Board Chairman Ed Sweeney, however, declared
his desire to proceed with Warner's grievance, hearing out in the hallway, rather
than within an office. Canavan and Union President Dan Sweeney requested the
complainant and Chairman Ed Sweeney to join them in the business representative's
office. Ed Sweeney, however, directed Warner to remain where he was; Warner
complied. (According to the complainant, Chairman Ed Sweeney is "about three
times bigger" than he is; further, Warner testified that-he understands the arbitration
board chairman to be a Black Belt judo champion.) Considerable confusion ap-
pears to have developed. Ultimately, Respondent Union's regular business meet-
ing was suspended; Canavan and President Dan Sweeney, together with Groskin's
representatives, went upstairs ' to Canavan's office. No formal arbitration board
hearing with respect to Warner's grievance could be convened, however, and Gros-
kin's representatives finally left.
Sometime thereafter, Warner, James Burns, and Warner's son joined Canavan
and President Dan Sweeney within the business representative's office. Sharply
conflicting testimony, with respect to the conversation which followed, has been
proffered. Within the context of the record considered as a whole, however,
Canavan's version of the discussion-which Union President Sweeney corroborated
and supplemented-seems most credible. When Warner, Burns, and the com-
plainant's son entered Canavan's office, Respondent Union's business representative
was busy discussing another grievance problem with several union members. Set-
ting aside whatever question they may have had regarding Warner's pay grievance,
Burns, the complainant, and the latter's son requested President Sweeney to supply
them with a copy of Respondent Union's contract. Sweeney complied. During the
heated-though somewhat disjointed-discussion of Warner's termination which fol-
lowed, article' VIII of the contract was mentioned. (According to Warner, Presi-
dent Sweeney marked the designated article for their perusal. According to
Sweeney, he merely provided the men with a copy of the contract upon request.
Sweeney's recital is credited.) Burns taxed Canavan with discrimination because
he had caused Warner's termination while Jack Write, who then held Local 8 mem-
bership, had been permitted to retain his position. - Burns declared, that Write con-
sistently should likewise be "pulled off" Joint Venture's project. Canavan dis-
claimed any such "prerogative" however;, he refused to seek - Write's termination.
(According to Burns and Warner, Canavan • said he would take care of Write the
next day. The testimony proffered by Joint Venture's paymaster, however, reveals
that no action was actually taken against Write,,who remained at work until his
March 5 resignation.) Confronted with a claim that Respondent's contract arti-
cle VIII required Write's termination concurrently with Warner's. Canavan and
Sweeney declared that article VIII, was not 'enforced. Repeatedly, Respondent
Union's business representative disclaimed responsibility for Warner's termination,
complaining that he did not seem able to "get that through" to the Warners and
their friend. Upon this note, finally, the-discussion ended.
On February 13, Warner again sought dispatch from Respondent Union's hall;
he received no job referral. Finally, Canavan and he left the hall simultaneously.
When they reached,' the ' sidewalk, Canavan hailed Warner; and queried him as to
whether his union book had been returned. When Warner replied affirmatively,
Canavan asked if he planned to deposit his book with respondent labor organiza-
tion. Warner deinufred, saying that, "after the way they [had] treated',' 'him, be
believed he would deposit his book with the Oakland local. Warner's testimony
with respect to the balance of this conversation-most of which Canavan did not
trouble to deny-reads as follows: '
We proceeded down the street' and our cars were parked directly across from
each other. We got into a discussion on Jack Write. I asked him why he pulled
SGBOR61NATE UNION-7 'OF CALIF., BRICKLAYERS, ETC. 1335
me 'off the -job'and he did not pull Jack Write off the job, and he said, "I have
got more important things to do than pull Jack Write off the job." 3 said, "You
had plenty of time to pull me off the job." He said that the contractor fired
me through his own volition. I said, `,'Do you mean you had nothing to do
with it?" He said, "That is right."
Warner then visited Joint Venture's project; Mickelson,' however, again declared that
he had been laid off because Canavan and Sweeney had ordered his termination.
Later that same day, Warner telephoned Project Superintendent Gehron. Accord-
ing to Warner, Gehron confirmed Mickelson's prior declaration that his discharge
had been dictated by Respondent Union's representatives. When summoned as a
General -Counsel's witness, however, Gehron could not recall any such forthright
statement. ' He conceded that Joint Venture's bricklayer superintendent-during a
regular project progress meeting-did report trouble with respect to a layoff. Spe-
cifically, he recalled a report by Mickelson that he had laid off a masonry worker at
Respondent Union's request; the project superintendent, however, could not recall
the date of Mickelson's statement. - (Gehron's testimony does suggest that Mickel-
son's report with respect to the situation may have been proffered sometime after
Warner's telephone call; he recalled that Warner was told he (Gehron) knew nothing
regarding the matter, and that he would try to find out more from his bricklayer
superintendent.) With the record in its present posture, this trier of fact can con-
clude only that Gehron-whether or not he confirmed Warner's layoff pursuant to
Canavan's request-could only have based such a discussion upon some prior state-
ment by Mickelson; nothing in the record would warrant a conclusion that he had
personal knowledge, independently acquired, with respect to the circumstances of
Warner's layoff.
On or about Thursday, February 14, Warner visited Groskin's project, purport-
edly'to confer with Arbitration Board Chairman Ed Sweeney about his pay griev-
ance, which had not yet been resolved. While there, the complainant noticed Presi-
dent Dan Sweeney working, and queried him as to whether he remembered visiting
Joint Venture's project with Respondent Union's business representative. Sweeney,
however, bridled; he demanded, "What are you trying to do . . . make a Federal
case out of this?" Warner replied affirmatively. The next day, February 15, his
charge-which initiated the present case-was filed.
f. Reactions within Respondent Union
Testimony proffered, without contradiction, warrants a determination that
Warner's discharge generated considerable discussion within Respondent Union's
membership. More particularly, it seems to have become a prime topic of con-
versation with Federal office building masonry crew. Quite some time after
February 8, while a number of bricklayers-possibly as many as 15 or 20-were
gathered within the project's change quarters waiting to start work, Mickelson
declared, before the group, that, "I want everyone to know that Pat Canavan and
Sweeney came down and told me to lay this ;fellow off because he was in trouble with
the union." This remark was overheard by union member Jack Kessler who-though
not then working on the Federal office building project-happened to be present.
Thereafter, on July 15, Canavan called a special meeting of Respondent Union's
membership. He reported he had heard about Mickelson's statement that Warner
was laid off because of a directive which he (Canavan) had given; Canavan pub-
licly denied that he had given such a direction to Joint Venture's bricklayer super-
intendent. Mickelson, thus charged with a misstatement relative to Canavan's role
in Warner's termination, denied that he had previously declared Canavan responsible
for Warner's layoff. Respondent Union's business representative summoned Jack
Kessler to corroborate his report; Kessler confirmed his recollection of Mickelson's
prior statement to Joint Venture's masonry crew with respect to Canavan's respon-
sibility for the complainant's termination; Canavan capped this with a declaration
that he would believe Kessler in preference to Joint Venture's bricklayer super-
intendent. (Substantially, Canavan-thereby-charged Mickelson, before Respond-
ent Union's membership, with responsibility for certain statements, the truth of
which Respondent Union's business representative denied.) Mickelson, however,
reiterated his denial of responsibility for such statements; thereupon, some union
member asked him to put his denial in written form. Presented with this challenge,
Mickelson-executed a document which read as follows:
To whom it may concern:
I,'Herbert Mikelson [sic] hired Brother Arthur Warner and after a period
of time, the man was-layed [sic] off, on account of 'lack of work. -
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This written declaration was signed by Joint Venture 's bricklayer superintendent be-
fore three witnesses. With this document in Respondent Union's possession, Canavan
took no further action, prior to the time this case was heard.
g. Conclusions
Proper determinations with respect to the question now presented must neces-
sarily rest upon credibility resolutions. Warner's testimony-which Bums corrob-
orated-would clearly warrant a determination that Mickelson terminated his serv-
ices; giving as his reason therefor, a purported directive received from Respondent
Union's business representative. While a witness, Canavan made no effort to chal-
lenge Warner's testimony relative to Mickelson's purported statement; Respondent
Union's business representative, somewhat surprisingly, declared his belief, rather,
that Joint Venture's bricklayer superintendent really did make the statement charged.
Respondent Union has denied, however, that Canavan said or did anything which
Mickelson could reasonably have construed as requesting Warner's termination.
And Canavan's testimonial recollection with respect to his February 8 conversation
with Joint Venture's bricklayer superintendent, clearly provides support for such
a denial. Canavan's testimony, with respect to this facet of the case, has been
credited. (Within his brief, General Counsel's representative has suggested that-
even with a determination "contrary to the indications in the record" that Canavan
did not designate Warner by name during his-February 8 argument with Joint Ven-
ture's bricklayer superintendent-this agency may reasonably infer that his (Ca-
navan's) harsh and derogatory statements about Mickelson's hiring practices,
generally caused the latter to discharge Warner. See N.L.R.B. v. Jarka Corpora-
tion of Philadelphia, 198 F. 2d 618 (C.A. 3); and N.L.R.B. v. St. Joe Paper Co.,
supra. This contention fails to persuade. As the Court of Appeals for the Sec-
ond Circuit observed in the second case cited, "Had the union been innocent of any
intent to cause Rotolo's discharge, no violation of Section 8(b) (2) with respect to
this incident would have been found." [Emphasis supplied.] Consistently with
this statement of the law, General Counsel's contention that Canavan's protest with-
respect to Mickelson's hiring practice "caused" the latter to effectuate Warner's,
termination, could only be considered persuasive if bottomed upon reliable, proba-
tive, and substantial evidence that some statutorily proscribed intent motivated the,
business representative's remarks. However, persuasive testimonial or documentary
proof that Canavan's protest was calculated to cause prompt employer discrimina-
tion with respect to Warner's job tenure specifically cannot be found in the present
record.) Mickelson was never summoned for testimony relative to Canavan's
recollections of their February 8 conversation; General Counsel's failure to call
him certainly would tend to support Respondent Union's contention that he could
not have qualified or contradicted Canavan's testimony.
With matters in this posture, we reach the second credibility question which the
present record presents. Reference has previously been made to Warner's testi-
mony-which Bums corroborated-that Canavan substantially conceded responsibil-
ity for his (Warner's) termination by: (1) Failure to deny responsibility for a dis-
charge directive purportedly given Joint Venture's bricklayer superintendent, when
told that Mickelson had charged him therewith; and (2) repeated comments, when
charged with responsibility for Warner's dismissal, relative to union members who
were not working, and Warner's failure to transfer his union book. (Substantially,
General Counsel contends that such reactions by Respondent Union's business repre-
sentative, when charged with responsibility for Warner's termination, reflect a tacit
concession that the charge might be considered correct, together with a similar con-
cession relative to his motivation.) Within this Decision,, however, Canavan's denial
of statements reflective of such tacit concesssions has been credited. I find that no.
such statements were made within the context which 'General Counsel's witnesses
described.
Several reasons for my determination to credit Respondent Union's business repre-
sentative have been noted. Further consideration of the record will reveal more
than sufficient justification for my conclusion that Canavan's recitals merit credence.
First, reference should be made to testimonial and documentary material, previously
noted, which reveals that Respondent Union-throughout the period with which
this case is concerned-made no serious effort to compel compliance with certain
so-called "union security" provisions, within the contract by which Joint Venture was
bound, herein found statutorily proscribed. Business records proffered with respect
to Respondent Union's contractually recognized health and welfare program-which
cover a fiscal year prior to Joint Venture's contractual commitment-provide fur-
ther support for Respondent Union's contention with respect to this facet of the
SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS, ETC. 1337
situation. These records reveal that some 98 men not' affiliated with respondent
labor organization worked within its geographical jurisdiction during the fiscal year
in question. President Dan Sweeney proffered a list with 180 names; the men
listed were designated as men without membership status in Respondent Union
whose names might be found within that organization's 'health and welfare plan
records. Within the group listed, my review has revealed 98 men with a record
of hours worked for masonry contractors privy to Respondent Union's health and
welfare program. Though these men concededly may not have worked for con-
tractually bound contractors during the period with which this case is concerned,
Respondent Union's demonstrated record of toleration, with respect to their prior
-employment within its territorial jurisdiction certainly tends to support my con-
clusion, previously noted, that Respondent Union made no real effort-during the
period which' General Counsel's complaint covers-to maintain proscribed "closed
shop" conditions. Second; note should- be taken of Canavan's failure to' protest
Joint Venture's hire and retention 'of 'two Oakland local members during the period
with which this case is concerned. One, Eddie Bryant, had been hired January 7;
the other, Jack Write, began work exactly 1 month later, 1 day after Warner's hire.
Both were members,of Joint Venture's -masonry crew when Canavan visited the
Federal office building project on February 8; yet no suggestion seems to, have been
made by Respondent Union's business representative, then or thereafter, that these
two men, should be laid off because of failure or refusal to transfer their union
books, or because some union members were not working. With due regard for
,the record in-this respect, General Counsel car' hardly contend legitimately that
Warner's termination derived from Canavan's conceded desire generally to find
work -for members seeking jobs. through Respondent Union's„hall, or to promote
membership transfers by members of sister locals. (Nothing in the record would
warrant a determination that Canavan wanted a vacancy created on Joint Venture's
-crew to permit Pizzella's referral; Pizzella was not referred from Respondent
Union's hall.) His failure to press for Bryant's or Write's termination persuasively
suggests rather that he (Canavan) possessed no genuine desire to "pull" men "off"
jobs currently held for such -reasons. Third, nothing in the present record even
remotely suggests that Canavan may have had some special reason for causing dis-
crimination against Warner, while Bryant and Write were not disturbed. Taken
as a whole, the record can be said rather to provide, more than sufficient support
for a conclusion precisely contrary. Canavan's previous contacts with Warner had
been friendly. Respondent Union's business representative had, himself, voluntarily
suggested prosecution of Warner's pay grievance; with respect thereto, his participa-
tion had been diligent. So far as the record shows,,Warner's job with Joint Ven-
ture's masonry crew had materialized largely because of Canavan's previously demon-
strated willingness to give him clearance. Within this context, Respondent Union's
counsel has pressed a rhetorical question within his brief:
If Canavan was opposed to Warner working at the Federal Building -why did
he grant him the original "clearance" slip? As stated by Canavan, "If I didn't
have all [the] intentions in the world of wanting him to get the job, I wouldn't
have [gone through the bother of writing] the note."
These 'observation I find persuasive. Canavan's testimonial protest noted, with
respect to the purity of his motives, carries conviction; nothing in the record even
remotely suggests that Respondent Union's business representative deliberately
"mousetrapped" Warner by requesting Mickelson to give his job application favor-
able consideration, while planning to "pull" him "off" whatever job he might secure
-shortly thereafter.
Within his brief, Respondent Union's counsel has presented a comprehensive
theory, sharply at variance with General Counsel's contentions, calculated to ra-
tionalize the situation with which this case is concerned. Substantially, counsel has
suggested that:
In outline form, it is the Union's position that some bad blood existed between
Canavan and Mickelson for a considerable period of time. It is the Union's
further position that Mickelson did state to Warner that he was terminated
because he was in trouble with the Union and made calculated and deliberate
efforts to bring this statement to the attention of many assorted bricklayers.
However, when challenged by Canavan, it was denied . Mickelson's mo-
tive are found in the history of the relationship between Canavan and Mickel-
son, in union factionalism , and more particularly , in the way Mickelson handled
the Roscoe-Ajax job. Reinforcement of this assertion of the Union is found
in the fact that of eight bricklayers sent by Canavan to the job in the few
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks preceding February 8th , six were terminated within a minimal period
although there was an understanding that no men sent by Canavan during this
period would be let go within a short period of time. It is further the Union's
position that on February 8, Canavan went to the job and protested heatedly
the violation of this understanding and complained that the men dispatched
from the Union were let go and Mickelson was replacing them with men off
the bank . It is the further hypothesis of the Union that Mickelson , in a fit of
pique , fired Warner on the mistaken assumption that he was a friend of
Canavan 's or singled him out in a prolongation of the argument ... . The
Union suggests that the evidence is persuasive that the conversation between
Mickelson and Canavan took place in the context of the lay -off of . the six-dis-
patched men . The Union further suggests that it is slightly .[ incredible] to be-
lieve that Mickelson on the one hand would lay off almost every dispatch made
by Canavan , even though pursuant to an express understanding that it would
not be a "hire and fire" deal, and then supinely agreed to fire Warner because
he was in unknown "union trouble".... Certainly if Mickelson had laid off
Warner at the request of Canavan he would not have announced to the group
after the charges had been filed at the N .L.R.B. that the charge was true. Fur-
ther , it is incredible that he would go through the humiliation of being branded
as a liar before the membership if he was acting on behalf of the Union.
When considered within the light which the record , taken as a whole, provides, this
hypothesis with respect to the circumstances leading to Warner 's termination cannot
be cavalierly dismissed . For present purposes , however, no definitive ' determination
with respect to the correctness of the hypothesis stated need ' be' reached ; this ' trier
of fact need only hold that General Counsel , confronted therewith , has failed;to
provide reliable and probative evidence sufficient to warrant its rejection :' Such- is
my conclusion . General Counsel , therefore , cannot be found to have proven,
through a fair preponderance of the evidence , that Respondent Union caused or at-
tempted to cause discrimination against Arthur G. Warner by Joint Venture , within
the meaning of Section 8(b) (2) of the Act, as amended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent Union's continued course of conduct , set forth in section III , above-
since it both affected and concerned the business operations of Joint Venture de-
scribed in section I , above-has a close , intimate , and substantial relation to trade,
traffic, and commerce among the several States and , absent correction , would tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been found that Respondent Union engaged , and continues to engage,
in unfair labor practices , it will be recommended that the designated organization
cease and desist therefrom and take certain affirmative action ; including the posting
of appropriate notices, designed to effectuate the policies of- the Act, as amended.
It has been found specifically that certain union-security provisions in Respondent
Union 's current collective -bargaining contract with Joint Venture exceed permissible
limits. With this determination in mind , my recommendation will be that Respond-
ent Union cease and desist from the maintenance , effectuation, or enforcement of
the designated union -security provisions . Further , my recommendation will be that
Respondent Union refrain hereafter from the negotiation or execution of any
collective-bargaining contract with union -security provisions similar to those herein
found subject to statutory proscription.
Respondent Union 's conduct with respect to the maintenance , effectuation, and
enforcement of its contractual union-security provisions , which have been - found
improper , reveals no general purpose , in my opinion , to limit the lawful rights of
workers and jobseekers covered by the contract in question . Such being the case,
no broad order-calculated to require Respondent Union to cease and desist from
infringement in any other manner upon workers' rights statutorily guaranteed-
would seem to be required.
In the light of the foregoing findings of fact, and upon the entire record in this
case, I make the following: -
CONCLUSIONS OF •LAW - ' `
1. Roscoe-Ajax Construction Co., Inc:, Knickerbocker Construction Corporation,
Joint Venture , designated - as Joint Venture herein, ,is an employer within the mean-
ing of ' Section • 2(2) of the, Act,- engaged in '°business • activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as amended.
SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS, ETC. 1339
2. Subordinate Union No. 7 of California of Bricklayers, Masons and Plasterers
International Union of America, AFL-CIO, designated as Respondent Union herein,
is a labor organization within the meaning of Section 2(5) of the Act, as amended,
which admits employees of Joint Venture to membership.
3. By participation in the maintenance and effectuation of a collective-bargaining
contract with Joint Venture containing certain union-security provisions found sub-
ject to statutory proscription, Respondent Union has caused and continues to cause
Joint Venture to discriminate against employees and job applicants , in violation of
Section 8(a)(3) of the Act, as amended; thereby, Respondent Union has engaged
and continues to engage in an unfair labor practice within the meaning of Section
8(b) (2) of the Act, as amended.
4. By its course of conduct in this `respect, Respondent Union has likewise re-
strained and coerced employees and job `applicants with respect to their exercise of
rights guaranteed in Section 7 of the Act; thereby, Respondent Union has engaged
and continues to engage in an unfair labor practice within the meaning of Section
8 (b) (1) (A) of the Act, as amended.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act , as amended.
6. General Counsel has failed to establish, by a fair preponderance of the evidence,
that Respondent Union caused or attempted to cause Joint Venture to discriminate
against Arthur G. Warner within the meaning of Section 8(b) (2) of the Act, as
amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case , it is 'recommended that the Board , pursuant to Section 10(c) of the
National Labor Relations Act, as amended, order that Subordinate Union No. 7
of California 'of Bricklayers, Masons and Plasterers International Union of America,
AFL-CIO, its officers , agents, representatives , successors , and assigns , shall:
1. Cease and desist from:
(a) The maintenance, performance, effectuation, or enforcement of certain
designated union-security provisions in its collective-bargaining contract with Joint
Venture which, by their terms: (1) Permit representatives of Respondent Union to
refuse or limit clearances for work, contractually declared grantable to members of
sister locals affiliated with respondent labor organization's parent body whenever
something less than a nonspecified "fair percentage" of Joint Venture's employees
are Respondent Union's members, or whenever members of Respondent Union can
be supplied within some contractually stated period; (2) provide that membership
in Respondent Union shall be a condition of continued employment "seven days
after" such employment commences, or "seven days after" the effective date of
Respondent Union's contract, whichever is later; (3) condition a covered worker's
eligibility to work with•the tools of the trade, or to perform certain designated work
tasks, upon such a worker's acquisition of membership in Respondent Union's par-
ent body, except to the extent permitted by Section 8(a)(3) and 8(f) of the Act,
as amended; (4) provide for contractual incorporation by reference of certain
"working code" provisions within Respondent Union's constitution and bylaws which
would force or require workers covered by the contract to refrain from working
with nonmembers of Respondent 'Union's parent 'body, or which would require
foremen with membership in respondent labor organization, functioning as Joint
Venture's supervisors, to discriminate against workers under their supervision, ex-
cept to the extent permitted by Section 8(a)(3) and 8(f) of the Act, as amended.
(b) Restraint or coercion of employees or work applicants, in any like or related
manner, in the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own free
choice, or to engage in other concerted activities for-the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and all such
activities except to the extent that such rights may be affected by an agreement
authorized under Section 8 (a) (3) and 8(f) of the Act, as amended.
2. Take the following affirmative action which 'will effectuate the policies of the
Act, as amended: '
(a) Post at its business office and meeting hall in San Francisco, California,
copies of the attached notice marked "Appendix B." i Copies of said notice, to
I Should the Board adopt this Recommended Order, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice Further, should the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing
an Order" shall be substituted for the words "a Decision and Order."
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for Region 20, shall, after being duly signed
by respondent labor organization's repesentative, be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where-notices to members are customarily posted. Rea-
sonable steps should be taken by respondent labor organization to insure that this
notice is not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 20, additional signed copies of
the attached notice marked "Appendix B," to be posted by Joint Venture at its
Federal office building construction project and other places of business in San
Francisco, California. -Copies of this notice, to be furnished Respondent Union by
the Regional Director for Region 20, should be returned to him forthwith for ap-
propriate disposition, after being duly signed by Respondent Union's representative.
(c) File with the Regional Director for Region 20, in writing, within 20 days of
the date of service of this Order, what steps it has taken to comply with this Recom-
mended Order.2 -
? Should the Board adopt this Recommended Order, this provision shall be modified to
read: "Notify'said Regional' Director, in writing, within 10 days from the date of this
Order, what, steps Respondent has taken to comply herewith,"
APPENDIX A'
'AGREEMENT -
ARTICLE VIII
The union shall grant clearance to, members of other locals affiliated with the same
International Union as this union to work under the terms of this agreement, if a
fair percentage of the- employees are members of this union. In determining
whether or not a fair percentage of employees are members of this union, consid-
eration shall be given to the employment opportunities in the area, the number of
unemployed members of this union, the urgency of the work and the rules of the
International Union. In the event members of this union are not available, then
such clearances for members of other locals as are necessary shall be granted. No
clearances for members of other locals based on the non-availability of members of
this union shall be granted unless this union has been notified by the end of the
previous working day and has been unable, by the commencement of the ensuing
working day, to supply men.
Once a clearance has been granted to a member of such other local, based on the
non-availability of members of this union, such employee may not be displaced for
the duration of the job by a member of this union, provided, however, that the em-
ployer, in filling subsequent job vacancies, will insure that this union's members
constitute at least a fair percentage of working force.
No clearance is required of any member in good standing of this union. Mem-
bers of locals affiliated with the same International as this union may obtain clear-
ances by any one of the following means:
1. By written clearance issued by a duly authorized representative of this union.
2. By calling on the phone, receiving oral clearance from a duly authorized repre-
sentative of this union, and obtaining, within forty-eight (48) hours, confirmation in
writing of his clearance.
3. In areas at a distance from the City and County of San Francisco requiring,a
round trip fare in excess of Three Dollars ($3.00), clearance may be obtained from
the local Building Trades Council having jurisdiction over the area where the job
is located. This exception shall not apply to any area where the round trip bus
fare from the City and County of San Francisco is less than Three Dollars ($3.00).
ARTICLE XI
Membership in the union shall not be a condition of employment of a bricklayer
or stone mason . However , membership in the union shall be a condition of con-
tinued employment seven (7) days after the beginning of such employment or the
effective date of this agreement , whichever is later.
SUBORDINATE UNION 7 OF CALIF., BRICKLAYERS, ETC. 1341
Subject to the foregoing paragraph in this ARTICLE, the following shall apply:
No person shall work with the tools unless he is a member in good standing of the
B.M. & P.I .U. of America. In accordance with past practices , all contractors super-
vising their own work shall be practical bricklayers or stone masons , etc., and all
foremen shall be journeymen bricklayers or stone masons, etc.
All washing down and pointing of brick or stone work shall be done by brick-
layers or stone masons, respectively , including caulking and cleaning of all types of
masonry and caulking of all window frames encased in masonry or brick , stone,
cement , concrete structures , and all sandblasting , steamcleaning , polishing , waxing,
etc., of all types of masonry , gunite work on all buildings and sewers shall be done
by members of the bricklayers and stone masons, members of the B .M. & P.I.U.
of America.
It is further mutually covenanted and agreed that ARTICLE XI, Section 1, Sec-
tion 2, Section 3, Section 6, Section 8 and Section 9 of the Bricklayers , Masons and
Plasterers International Union of America Constitution , and the Working Rules, and
By-Laws of the Bricklayers and Stone Masons Union Local No. 7 of California as
the same exists at the date of the execution of this agreement are hereby incorpo-
rated and made a part hereof by reference as if fully set forth in this agreement,
and any part of this agreement that is in conflict with the I .U. Constitution or the
Local No. 7 By-Laws shall be declared null and void.
* * * * * * *
ARTICLE XI
BY-LAWS
Working Code
Section 1. No member shall allow anyone to lay out work for him or plumb
and level same who is not a foreman receiving regular foremans wages and a mem-
ber of the B.M. & P.I.U. of A.
No member shall allow any one who is not a brother member to pass him brick,
block, mortar, etc.
No member shall allow anyone to lay brick, block stone, etc. on a job where he
is working but persons who are members of the B.M. & P.I.U. of A.
SEC. 2. On work known as grout key or grout lock, reinforced brickwork etc.
and ceramic Terra Cotta, members of this Union shall pour the grout.
When grout is being poured by means of mechanized equipment a member of this
union shall supervise such grouting and all tamping and puddling shall be done
by members of the B.M. & P.I.U. of A.
* * * * * * *
SEC. 7. All washing down shall be done by members of the B.M. & P.I.U. of A.,
and in no case shall a separate contract be_ made of it unless to a contractor em-
ploying members of this Uniori. •
* * * * * * *
SEC. 11. Where brick, block, stone or any other material laid by members of this
Union is to be struck-up, jointed-up, pointed-up or raked out it shall be done by
the members of the B.M. & P.I.U. of A.
Foreman
SECTION 1. A foreman must be a member of the B.M. & P.I.U. of A. and a prac-
tical and competent mechanic in the branch of trade he supervises.
When three (3) or more members are working on the same job one (1) of them
must be designated as a foreman and when five (5) or more members are working
on the same job the foreman shall not work with his tools or operate any power
appliances.
He shall have the sole authority to hire and discharge all men under
his supervision.
He shall lay out all masonry work under his supervision.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any foreman who through intimidation or otherwise intentionally causes any of
his men to violate any section of the Constitution, By-Laws, rules and regulations of
this Union, the State Conference or the International Union, or who treats his men
in a disrespectful manner shall, upon conviction, be fined the sum of $25.00 for
the first offense, $50.00 for the second offense and be disbarred from acting in the
capacity of foreman in this jurisdiction for a period of at least six (6) months.
APPENDIX B
NOTICE TO ALL MEMBERS OF SUBORDINATE UNION No. 7 OF CALIFORNIA OF BRICK-
LAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AFL-CIO
AND TO EMPLOYEES OF ROSCOE-AJAX CONSTRUCTION CO., INC., KNICKERBOCKER
CONSTRUCTION CORPORATION, JOINT VENTURE
Pursuant to the Recommended Order of a Trial Examiner, of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT maintain, perform; effectuate, or enforce any provision within
our collective-bargaining contract with Roscoe-Ajax Construction Co., Inc.,
Knickerbocker Construction Corporation, Joint Venture, which, by its terms:
(1) Permits representatives of this local to refuse or limit clearances for work,
contractually declared grantable to members of sister locals affiliated with our
parent organization, whenever something less than a nonspecified "fair per-
centage" of Joint Venture's employees are members of this local, or whenever
our members can be supplied within some contractually stated period; (2) pro-
vides that membership in this local shall be a condition of continued employ-
ment "seven days after" such employment commences , or "seven days after"
the effective date of our,local's contract, whichever is later; (3) conditions a
covered worker's eligibility to work with the tools of the trade or to perform
certain designated work tasks, upon such a worker's acquisition of membership
in this local's parent organization, except to the extent permitted by Section
8(a)(3) and 8(f) of the Act, as amended; (4) provides for contractual in-
corporation by reference of,` certain -"working code" provisions within this
local's constitution and bylaws which would force or require workers covered
by the contract to refrain from working with nonmembers of,this local's parent
organization, or which would require foremen with membership in this local,
functioning as Joint Venture's supervisors, to discriminate against workers under
their supervision, except to the extent permitted by Section 8(a)(3) and 8(f)
of the Act, as amended.
WE WILL NOT restrain or coerce employees or applicants for work with
Roscoe-Ajax Construction Co., Inc., Knickerbocker Construction Corporation,
Joint Venture, in any like or related manner with respect to their exercise of
the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own free choice, or to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an agreement, authorized
under Section 8(a) (3) and 8(f) of the Act, as amended.
SUBORDINATE UNION No. 7 OF CALIFORNIA OF
BRICKLAYERS, MASONS AND, PLASTERERS IN-
TERNATIONAL UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from its date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board' s Regional Office, 830 Market Street,
San Francisco, California, Telephone No. YUkon 6-3500, Extension 3191, if they
have any question concerning this notice or compliance with its provisions.