Victory Construction Co.

National Labor Relations Board - Board Decisions

Apr 25, 1960

127 N.L.R.B. 400 (N.L.R.B. 1960)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not tell Paul he discharged Zaremba and Leo Hoagland because they were
organizing.
True the timing of the discharges of Zaremba and Leo Hoagland raises a suspicion
that discriminatory action was taken against them. But suspicion is not proof and
a finding of violation of the Act cannot be based on suspicion alone. Valencia
Service Co., 103 NLRB 1190. Other than the testimony of Friend, set forth in
detail above, which I have not credited, the record contains no background 8 or
context of union animus or antiunion activity on the part of the Respondent.
Upon the foregoing and the entire record I am convinced and find that the General
Counsel has not sustained his burden of proving by a preponderance of the evidence
that Zaremba and Leo Hoagland were discharged for the reasons alleged in the
complaint
I adopt Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, and 7 and pro-
posed conclusions of law Nos. 1, 2, and 3 and will recommend that the complaint
herein be dismissed in its entirety.
CONCLUSIONS OF LAW
.1. The operations of the Respondent, Max Francis, d/b/a Max Francis Trucking
constitute and affect trade, traffic, and commerce among the several States within
the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 886, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (1) and (3) of the Act.
[Recommendations omitted from publication.]
union to the boys. He further explained to Paul that because of the situation at Superior
it would slow things up to come through Enid and he did not want to hold up the return
load.
8 For purposes of background only the General Counsel was permitted to adduce testi-
mony from Zaremba that in August 1957, while he and driver Robertson were unloading a
truck In Oklahoma City, Max Francis said, "if the boys ever wanted to deal their selves
[sic] out of a Job, that's all they had to do was to vote in the union and they would,
because he would park every truck." Max Francis truthfully explained that in his type
of operation , he hauls cheap commodities and In order to realize a profit he had to have
close control of the drivers . He admitted he may have said that he could not abide by
any regulations and that he would be forced to park the trucks because he would not be
able to pay the wages . Such statement was more In the nature of a prediction rather
than antiunion.
Victory Construction Co. and Franklin C. Butler
Construction and General Laborers' Union Local No. 758, Inter-
national Hod Carriers', Building and Common Laborers'
Union of America, AFL-CIO and Kenneth R. Brooks
Construction and General Laborers' Union Local No. 758, Inter-
national Hod Carriers ', Building and Common Laborers'
Union of America, AFL-CIO and Franklin C. Butler. Cases
Nos. 8-CA-1813, 8-CB-347, and 8-CB-348. April 25, 1960
DECISION AND ORDER
On September 29, 1959, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
127 NLRB No. 57.
VICTORY CONSTRUCTION CO . 401
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
.ie hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, the briefs, and the entire record in these
cases , and finds merit in the Respondents' exceptions. Accordingly,
the Board adopts the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent herewith.'
1. We disagree with the Trial Examiner's finding that the Respond-
ents were parties to an unlawful hiring arrangement, understanding,
or practice whereby members of the Respondent Union were given
preference in hiring over nonmembers. The record of actual hirings
negatives the existence of any such unlawful arrangement or practice.
According to the Respondent Company's records, the accuracy of
which has not been challenged, of 68 laborers hired on the project be-
tween June 24, 1958, and June 17, 1959, only 27, or 40 percent, had
referral slips from the Respondent Union. Thus, more than half the
laborers hired came from sources other than the Respondent Union.
This record evidence, as well as the testimony of the Respondent
Union's steward, Jesse Smith, that on instructions from Superintend-
ent Rose and timekeeper Geisler he had customarily hired laborers
"off the street" regardless of union affiliation, corroborates the testi-
mony of union officials, Szuhy and Byrd, denying that an agreement
for preferential hiring had been made with Rose. We note in this
connection that the Trial Examiner expressly discredited Rose's state-
ment that the alleged agreement for preferential hiring had been em-
bodied in a written contract. Accordingly, we find, contrary to the
Trial Examiner, that the Respondents were not parties to an unlawful
hiring arrangement, understanding, or practice whereby members of
the Respondent Union were given preference in hiring over non-
members.
2. We also disagree with the Trial Examiner's finding that the
Respondent Company discriminated against Brooks and Butler and
that the Respondent Union caused such discrimination. The Trial
Examiner's finding of specific discrimination was based upon his
subsidiary finding that the Respondents were parties to an unlawful
hiring-hall arrangement . As we have not adopted the latter finding,
we do not adopt the finding of specific discrimination based thereon.2
i The Respondents requested oral argument . The request is hereby denied inasmuch as
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties.
2 Member Bean agrees with his colleagues in reversing the Trial Examiner ' s findings
that the Respondents were parties to an unlawful hiring arrangement and that the
560940-61-vol. 127-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regardless of the reason assigned by the Respondent Company to
Brooks and Butler for not hiring the latter, the record is devoid of any
evidence which would explain why the Respondents would have varied
their nonexclusive, nondiscriminatory hiring arrangement in the case
of these two individuals. Moreover, the record strongly suggests that
there was no job opening when Brooks was refused work; and, in the
case of Butler, two employees were hired without referral on the day
he was refused employment.
In view of our reversal of the Trial Examiner's findings of unfair
labor practices, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
Respondent Union engaged In unlawful conduct by its failure to give Brooks and Butler
referral slips. However, even in the absence of an unlawful hiring arrangement, an
employer violates Section 8(a) (3) and (1) of the Act by conditioning employment upon
receipt of union clearance. The Lummus Company, 101 NLRB 1628, enfd. in relevant
part, 210 F. 2d 377 (C.A. 5). The Trial Examiner credited the testimony of Brooks and
Butler that representatives of the Respondent Company hald told them that they would
be employed if they obtained referral slips from the Respondent Union. There is in-
sufficient ground, in Member Bean's opinion, to upset these credibility resolutions of the
Trial Examiner. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362
(C.A. 3). Accordingly, he would find a violation of Section 8(a) (3) and (1) on the part
of the Respondent Company with respect to Brooks and Butler.
INTERMEDIATE REPORT AND RECOMMENDATIONS
ISSUES
The primary issues herein are whether Victory Construction Co., herein called
Respondent Company, and Construction and General Laborers' Union Local No.
758, International Hod Carriers', Building and Common Laborers' Union of America,
AFL-CIO, herein called Respondent Umon, operated under an unlawful hiring hall
arrangement or practice, whether Respondent Company unlawfully refused to hire
Franklin C. Butler and Kenneth R. Brooks and whether Respondent Union caused
Respondent Company to refuse employment to Franklin C. Butler and Kenneth R.
Brooks.
BUSINESS INVOLVED
Victory Construction Co., an Ohio corporation having its principal place of busi-
ness in Dayton, Ohio, engages in building construction in, and outside of, the State
of Ohio. During 1958 it performed services outside of Ohio in an amount in excess
of $1,000,000. At the times material herein, it was engaged in the construction of
multiple dwelling units (a housing project) near Lorain, Ohio, and this case concerns
events connected with this project. Ground breaking for this project took place on
or about June 24, 1958.
THE-UNFAIR LABOR PRACTICES
The Hiring Hall
Immediately prior to the ground breaking ceremonies William Rose , general
superintendent of the housing project for Respondent Company, met in Lorain, Ohio,
with representatives of various craft unions , including officials of Respondent Union.
On this occasion , Respondents arrived at a mutual understanding concerning rates
of pay and other conditions of employment . However , there is a dispute as to
whether they agreed upon union -security terms greater than permitted by the Act.
According to Rose, there was no discussion concerning, the specific terms of a
contract but there was a mutual understanding that he (Rose ) would call Respondent
Union when and as he needed laborers and Respondent Umon would send him
VICTORY CONSTRUCTION CO. 403
laborers on request and following the reaching of this understanding he (Rose) signed
a written agreement to this effect.'
According to Steve Szuhy, secretary-treasurer of Respondent Union, and James
Byrd, president and assistant business representative of Respondent Union, Rose
was shown the existing agreement between Respondent Union and the Lorain County
General and Masons Contractors Organization and an oral understanding 2 was
reached that the terms of this agreement, except those concerning union security 3
would be applied at the project involved herein.
Szuhy testified further that Rose was in a hurry to attend the ground-breaking cere-
monies and that when he (Szuhy) attempted to discuss the union-security provisions
Rose stated that he was going to "operate this job 100 percent union" and that he
would discuss these details later. A subsequent conference concerning such details
was not held.
At the time of the conference between Rose and the union officials noted above,
employers and unions in the construction industry, including Respondent Union,
had under consideration correction of unlawful hiring arrangements so as to conform
with the standards of the Mountain Pacific case, Mountain Pacific Chapter of the
Associated General Contractors, Inc., et al., 119 NLRB 883 and it apepars highly
probable that, and the Trial Examiner finds that Szuhy told Rose that the union-
security clauses of the contract were in conflict with the decisions of this Board and
modifications of these clauses were under consideration, that when efforts at modi-
fication were completed Respondent Union would seek to apply the provisions as
modified and that Rose understood this situation and indicated a willingness to go
along with these terms. However, the Trial Examiner is not convinced, as Szuhy's
and Byrd's testimony reflects, that an understanding was reached that no union-
security provisions were to be applicable while modifications were being worked out.
At most, only something in the nature of a general savings clause was agreed upon.4
In addition, Respondent Company's custom and practice is to employ union members
and obtain them through union organizations and this procedure, with certain ex-
ceptions,5 was followed with respect to laborers at the project involved herein.
Furthermore, in early September 1958, Respondent Company's president (Victory
Napolitano) was called to a meeting with representatives of various craft unions,
including officials of Respondent Union, and criticized for obtaining workmen from
sources other than union hiring halls and following this meeting Napolitano in-
structed Job Superintendent Rose not to hire workmen from sources other than
union organizations.
In the light of the foregoing and the facts hereinafter noted with respect to Kenneth
Brooks the Trial Examiner believes and finds that the evidence adduced establishes
an unlawful hiring hall arrangement or understanding or practice between Respond-
ents whereby members of Respondent Union were given preference in regard to
employment over nonmembers (see Gay Engineering Corporation, 124 NLRB 451).
Kenneth R. Brooks
On or about August 14, 1958, Brooks asked Project Superintendent Rose for
employment as a laborer. Rose asked Brooks if he could get a referral slip from
I In the light of the entire record herein, the Trial Examiner believes and finds that
Rose did not in fact sign such an agreement.
2 Szuhy and Byrd testified Rose did not sign any document on this occasion.
$ Article II which limits employment to members of the Union.
Article V, section 5, which states, "Any workman sent by the Union at the Employers'
request shall have preference over any other workman and shall be paid two (2) hours at
the regular rate if not put to work "
Article V, section 6, which provides, "when a workman is sent to a job by the Union
upon request of the Employer he shall carry an official referral from the Union "
Article VII, section 8, provides, "All foremen shall be members of the Union in good
standing."
Article VII, section 5, provides, "The Employer shall bring in no more than one labor
foreman. Any additional labor foreman needed shall be furnished by the Union."
Article VIII, section 3, which provides, "Any employee before going to work must
clear his union standing with the steward."
' A general savings clause does not make valid an otherwise unlawful understanding or
arrangement. See Honolulu Star-Bulletin, 123 NLRB 395; and Argo Steel Construction
Company, 122 NLRB 1077.
5 Some laborers were obtained by Respondent Company from sources other than Re-
spondent Union. However, such fact does not nullify an otherwise unlawful arrange-,
went. See Honolulu Star-Bulletin, supra.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union and upon receiving an affirmative reply said "Well, if you get a
slip from the Hall you got yourself a job." Another laborer (Pickett Johnson) then
asked Rose if he (Johnson) got a referral slip whether he (Johnson) would also get
a job. Rose told Johnson he (Rose) was not sure whether Johnson would also be
given work. Brooks and Johnson then got in Brooks' automobile and started toward
Respondent Union's business office. En route they met James Byrd, president and
assistant business representative of Respondent Union, and told him what had hap-
pened. Byrd then said he was going to the jobsite and that he would meet them
there. At the jobsite that day Brooks asked Byrd for a referral slip and Byrd said
he would go see whether Respondent Company wanted anybody. Byrd then entered
Respondent Company's jobsite office. A discussion ensued between Byrd and Re-
spondent Company's officials about Rose promising laborers work without first
clearing through Respondent Union and the inconvenience this caused Byrd. During
the course of this discussion Rose denied promising Brooks and Johnson jobs and,
in response to Byrd's inquiry "Do you want these two fellows?" (Rose) answered
"No." Upon his return from the office Byrd told Brooks Respondent Company
did not need anybody and refused to issue a referral slip. Brooks did not thereafter
receive a referral slip or employment.
Between August 14, 1958, and June 17, 1959, both inclusive, Respondent Com-
pany hired approximately 75 laborers.
Franklin Butler
On or about Friday, November 14, 1958, Franklin Butler asked Project Superin-
tendent Rose for employment as a laborer. Rose referred Butler to Respondent
Company's field superintendent (Meade). Meade told Butler he (Meade) was
about to call Respondent Union for two men and that if he (Butler) got a referral
slip from Respondent Union he "could be one of the two." Butler then went to
Respondent Union's business office, arriving there about 8:45 a.m., and talked
to Steve Szuhy, secretary-treasurer of Respondent Union.
Butler told Szuhy about his efforts to get work at the project and asked for a
referral slip. He was told "to sit out there [in the union hall] and wait and he
[Szuhy] would see what he could do." Butler waited until the hall closed, about
10 a.m. While he was waiting Szuhy received a telephone call but said nothing
to Butler. After the closing of the union hall Butler returned to the project site.6
When Butler arrived at the project site the second time, on or about November
14, 1958, he went to the jobsite office and was told, by someone in the office who
Butler could not identify but who was processing the employment papers of two
laborers then being hired, that he (the office worker) was signing up two men sent
to the project by Respondent Union at the request of Respondent Company. Butler
identified one of the laborers as Jake Jones. He did not know the name of the
other and was unable to identify him except as a member of Respondent Union.
Respondent Company's records reflect that Jake Jones and Joe Hegedus were hired
on November 14, 1958. Butler testified that he noticed that Jake Jones had in his
possession a (referral) slip.
On on about Monday, November 17, 1958, Butler again called at Respondent
Union 's business office. He complained about the manner in which he had been
treated ( about his not being sent to the project ) and a heated discussion ensued
resulting in the closing of the union hall and dispersement of members?
Butler did not thereafter seek or obtin a referral from Respondent Union or a
job from Respondent Company.
In view of the hiring-hall arrangement between Respondents (mentioned earlier
in this report ) and the facts found above concerning Brooks and Butler the Trial
9 Based upon the testimony of Butler. Szuhy denied that he talked to Butler that morn-
ing and denied that Butler ever asked him for a referral to the Victory job. Szuhy testi-
fied that Andrew Marcks, business agent for Respondent Union, not he (Szuhy ), talked
to Butler that morning. Marcks corroborated Szuhy and testified further that the con-
versation with Butler was in no way related to Butler's efforts to get a job . In the light
of the entire record herein , including Butler's efforts to get a job immediately prior to
this visit to the union business office and the events immediately after this visit ( herein-
after noted ) the Trial Examiner believes and finds Butler 's version of this incident more
reliable than the versions given by Szuhy and Marcks.
a The testimony concerning the details of this incident is conflicting with Butler giving
one version and Szuhy and Byrd giving a somewhat different version. In the light of the
facts previously found , Butler's version appears more reliable than Szuhy's and Byrd's.
However , both versions support the facts found above.
STEEL BUILDERS, INC. 405
Examiner believes and finds that Brooks and Butler were discriminatorily denied
employment by Respondent Company, that Respondent Union caused Respondent
Company to engage in said discriminations and that by said conduct Respondent
Company violated Section 8(a)(3) and (1) of the Act and Respondent Union
violated 8(b)(2) and (1) (A) of the Act. See Schenley Distillers, Inc., 112 NLRB
613.
Ultimate Findings and Conclusions
In summary, the Trial Examiner finds and concludes that: (1) by the afore-
mentioned hiring-hall arrangement understanding or practice between Respondents,
Respondent Company violated Section 8 (a) (3) and (1) of the Act and Respondent
Union violated Section 8(b)(2) and (1)(A) of the Act; (2) by conditioning
employment upon clearance from Respondent Union and denying employment to
Kenneth R. Brooks and Franklin C. Butler because they did not obtain such
clearance, Respondent Company violated Section 8(a)(3) and (1) of the Act; (3)
by denying clearance to Kenneth R. Brooks and Franklin C. Butler thereby causing
Respondent Company to deny employment to Kenneth R. Brooks and Franklin C.
Butler Respondent Union violated Section 8(b) (2) and (1) (A) of the Act; and
(4) these unfair labor practices occurring in connection with the operation of the
business involved herein have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that Respondents have engaged in unfair labor practices in violation
of the Act, the Trial Examiner recommends that Respondents, to effectuate the
policies of the Act, cease and desist therefrom and take the affirmative action herein-
after specified.
At the hearing in this matter the Trial Examiner dismissed allegations of the
complaint to the effect that moneys had been unlawfully exacted. Thereafter, the
Trial Examiner notified the parties that perhaps this ruling was in conflict with
Local 138, International Union of Operating Engineers, AFL-CIO, etc., 123 NLRB
1393, and requested their comments concerning this matter. Counsel for the General
Counsel asserts that the above-named case is controlling and that under that decision
the aforementioned ruling should be reversed and that the Brown-Olds 8 remedy
should be applied herein. Counsel for Respondent Company asserts that the ruling
was appropriate when made, as there is no evidence that moneys were exacted,
and that the Trial Examiner should adhere to the ruling. Counsel for Respondent
Union takes the same position as counsel for Respondent Company and asserts
further that under the decided cases a Brown-Olds remedy is not appropriate
herein and that, in any event, the Trial Examiner cannot now reverse the ruling
without reopening the hearing and affording Respondents an opportunity to adduce
evidence that no moneys were exacted. On the basis of the case cited above and
Gay Engineering Corporation, supra, the Trial Examiner hereby rejects the conten-
tions of Respondents, reverses the ruling made and recommends the application
of the Brown-Olds remedy to expunge the effect of the illegal conditions of employ-
ment imposed upon employees of Respondent Company.
[Recommendations omitted from publication.]
8 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada (J. S. Brown-E . F. Olds Plumbing and Heating
Corporation ), 115 NLRB 594, 5197-602.
Steel Builders, Inc. and United Steelworkers of America, AFL-
CIO. Case No. 10-CA-3970. April 05, 1960
DECISION AND ORDER
On September 16,1959, Trial Examiner Ralph Winkler, issued his
Intermediate Report in the above-entitled proceeding, finding that the
127 NLRB No. 59.