W. B. Uhlhorn

National Labor Relations Board - Board Decisions

May 22, 1958

120 N.L.R.B. 1088 (N.L.R.B. 1958)

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such labor organization authority to determine the seniority of
employees or to settle controversies relating to such seniority.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
in Section 7 of the Act.
GIBBS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES AND TO ALL OUR MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT perform or give effect to the provision in our
collective-bargaining agreement with Gibbs Corporation, Jack-
sonville, Florida, which delegates to us authority to settle
controversies relating to seniority.
WE WILL NOT enter into, maintain, or renew any agreement
with any employer which contains provisions delegating to us
the authority to determine the seniority of employees or to settle
controversies relating to seniority.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act.
INDEPENDENT WORKERS UNION OF FLORIDA,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
W. B. Uhlhorn , General Contractor and Will J. Ney, Jr.
Local 14, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Will J. Ney, Jr. Cases Nos. 39-CA-
635 and 39-CB-166. May 22, 1958
DECISION AND ORDER
On July 18, 1957, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in this proceeding finding that the Respondents
120 NLRB No. 148.
W. B. UHLHORN 1089
had not engaged in the violations of Section 8 (b) (2) and (1) (A)
and Section 8 (a) (3) and (1) of the Act alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman
Leedom and Members Bean 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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
[The Board dismissed the complaint.]
1 Notwithstanding the arguments in the General Counsel's brief and the fact that the
Trial Examiner regarded DePue's action in terminating Ney as "perhaps suspicious," we
would not be warranted in overruling the credibility findings of the Trial Examiner.
Universal Camera Corp v. N. L. R. B., 340 U. S. 474, 490-497 (1951). In view of the
Trial Examiner 's resolutions of conflicting testimony and all the facts and circumstances
in this case , we find , as did the Trial Examiner , that the General Counsel did not sustain
his burden of establishing that Ney was discharged at the Respondent Union's request for
refusing to join the Union
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges, as amended , duly filed and served the General Counsel of
the National Labor Relations Board, ' through the Regional Director for the Sixteenth
Region (Fort Worth, Texas), pursuant to Section 10 (b) of the Labor Management
Relations Act (herein called the Act) issued complaints dated April 16, 1957, against
W. B. Uhlhorn, General Contractor, 2 herein called the Respondent Employer or
Uhlhorn, and Local 14, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called the Respondent Union or the Union On the same date
the Regional Director issued an order consolidating the cases for hearing . In sub-
stance the respective complaints allege that the Union by causing the Employer to
discharge Ney because of his nonmembership in the Union violated Section 8 (b) (2)
and (1) (A) of the Act, and the Employer in effectuating the discharge thereby vio-
lated Section 8 (a) (3) and (1) thereof. The Respondents in their answer admit
certain allegations in the complaints but deny the commission of any unfair labor
practices.
Pursuant to notice , a hearing was held before the Trial Examiner at San Antonio,
Texas, on May 15, 1957. All the parties were represented by counsel and were
afforded opportunity to be heard , to introduce relevant evidence , to present argu-
ment, and to file briefs . The parties waived oral argument and thereafter counsel
for the Respondents filed briefs which have been considered by the Trial Examiner.
Upon the entire record in the case , the Trial Examiner makes the following:
1 The General Counsel and his staff attorney appearing for him at the hearing are
referred to as the General Counsel, and the National Labor Relations Board as the Board
2 The Trial Examiner , without objection , granted the General Counsel's motion to
amend the complaints and other formal papers to show the correct spelling of Uhlhorn
and to add "Jr " to the Charging Party's name
483142-59-vol. 120--70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE RESPONDENT COMPANY'S BUSINESS
On the basis of the pleadings and stipulation of facts by the Respondent Union,
.the Trial Examiner finds that the Respondent Employer is an individual and main-
tains his principal office and place of business at Harlingen, Texas, where he is
engaged in the general contracting business. About December 3, 1956, Uhlhorn
was engaged as subcontractor by Texas Aviation Industries, Inc., to construct 8
.officers' quarters and I service building at the Hondo Air Base, Hondo, Texas, for
the sum of $232,841, the buildings to be completed by May 15, 1957. Uhlhorn's
subcontract was approved by the United States Air Force. The Trial Examiner
.concludes and finds that Uhlhorn is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The General Counsel's case
Ney testified he has been a carpenter for some 23 years and about January 2, 1957,
.applied for a job to David DePue, superintendent for Uhlhorn at the Hondo Air Base
project. On that occasion Ney informed DePue that he was not a member of the
Union and DePue told him he was broadminded in such matters. On January 7,
Ney was employed by DePue who told him he would work with another individual
as an ironworker or rod buster, so that the Union "can't kick" and after that job was
completed he would see if something could be worked out. As a rod buster Ney
tied steel rods for slabs in the buildings and while the wage scale was the same as
paid carpenters, this work was not ordinarily performed by carpenters. Ney worked
on this job for about 3 weeks and then for about 1 week straightened up pipes that
held up the bar joists. When asked which craft, the carpenters or ironworkers,
customarily did pipe straightening, Ney said he did not know, that it was the con-
tractor's responsibility, but since the carpenters had installed the pipe it would be
their job to correct any mistakes in the installation thereof. Following the latter
job, Ney worked a few days with Jack Heath, a carpenter, putting up partitions in
the buildings and then worked about 3 weeks fastening 2 x 6's under the window
frames. Thereafter, Ney set aluminum window frames and as they had only fins
for one side of the big windows, they bored the fins so that they would fit on the
,opposite side and after completing this work then set the windows on the sides of
four buildings. Ney said that after rod busting he used carpenters' tools and per-
formed carpenter work, and in respect to the installation of the metal window frames,
he asked the ironworker foreman which craft should do the work, he said there was
some jurisdictional question involved, that sometimes the ironworkers get it and
.other times the carpenters do the work.
Ney stated that on one occasion when he was working with Heath, he did not
give the date, Calvin Daniel, business agent for the Union, came to the job and
talked to Heath and Hector Alvardo, union carpenters. Although Ney did not join
the group he was close enough to overhear their conversation. Ney heard the men
say that he was performing carpenter work without having a card and Daniel asked
Heath if he thought Ney would be willing to join the Union. He did not say what,
if any, reply Heath made to Daniel. Sometime after Daniel left, DePue came to
the place where Ney was working, so he asked him what was going to happen, and
DePue answered he did not know. Ney said that since the other two carpenters,
Heath and Alvardo, had union cards and paid their dues, he was willing to take out
a permit. Ney had been a member of the carpenters union but dropped his member-
ship at the end of World War II. DePue said he was glad to know Ney was
-willing to take out a permit and that he would call Daniel that night and have him
come out the following day and straighten out the matter. Heath and Ney were
laid off that evening, Thursday, for lack of materials but resumed work the following
Monday. On Friday, the day after the layoff, Ney asked DePue if he had called
Daniel and he replied he had not and to let the matter ride. In one of their
conversations DePue told Ney he did not 'want to jeopardize Alvardo's card, that
"It's not only the carpenters they'll pull off, they'll pull off the ironworkers and the
plumbers and electricians, they'll shut my job down and we have a specified time
to complete it and I have got to get it finished "
On the afternoon of February 28, DePue introduced Daniel to Ney on the job and
told him Daniel wished to speak to him. DePue then left. Daniel said he would
like to have Ney join the Union and Ney replied he was willing to take out a permit.
W. B. UHLHORN 1091
Daniel stated the Union did not issue permits any more and that he would have
to pay a $100 initiation fee. Ney told him he could not see paying a fee for 2 months'
work, the job being scheduled for completion about May 15. When Daniel pointed
out that he had already worked for about 2 months, Ney said he had never been
questioned in that respect, although Daniel had seen him working on two prior
occasions, and he did not intend to pay for that period. After some discussion by
Ney concerning the Union's action in removing some of its members from certain
jobs in the past and Daniel's assertion that he had to pay a second initiation fee
when he returned from the armed forces, Ney stated that according to the notice
posted at the project the Employer could not discriminate against employees because
of race, creed, color, or affiliation or nonaffiliation with a union. Daniel replied,
"If I can't. You and Hector [Alvardo] will finish the job." Ney told him, "0. K."
and Daniel left. Ney saw Daniel talking to DePue and as he approached the men,
he heard Daniel say as he was leaving, that he would send out two men in the
morning. Ney inquired of DePue what was going to happen to him and he said
he had not made up his mind. Ney declared that if he intended to follow the jobs
and stay with one contractor it would be best for him to join the Union but since
he wanted to remain in the area he could not see any advantage in joining for the
reason that he could not work below the union scale and, seemingly, only a few
jobs paid the scale. DePue said if he felt that way he, too, would not probably
pay the $100 initiation fee, and the conversation ended. Ney said he understood
Daniel's remark about him and Alvardo finishing the work to mean that he was
pulling his men off the job. Ney said he was certain the laborers on the job were
nonunion but he did not know whether the skilled workers were or were not union
members.
Following his conversations with DePue and Daniel, Ney was laid off at quitting
time by DePue, who asked him to sign a paper stating that DePue was paying Ney
out of his own funds, which he did.
Heath, a carpenter of 20 years' experience and a member of the Union, was
employed on the Hondo project about January 15, and during his employment built
forms, set steel, and put in windows and frames. Admittedly, he and Ney were,
and are, close friends. Shortly after the date of his employment DePue told him
that Ney was classified as an ironworker. Although DePue gave no reason for
this classification, Heath assumed it was done so he and Ney could work together,
apparently without Heath violating union rules, until Ney could get straightened out
with the Union. Heath stated during his employment with Ney, on the basis of
his experience in the building construction industry, Ney at times performed ironwork
and carpenter work. He further stated that on some undisclosed date he and
DePue talked about Ney joining the Union and he told DePue he would speak to
Ney and try to encourage him to join. Heath, at unspecified times, talked to Ney
about joining the Union and believed he had convinced Ney that he should become
a member. However, there is nothing in his testimony to indicate that he ever
informed DePue of his talks with Ney. Likewise, there is no indication that Heath
reported to Daniel the fact that he was trying to get Ney into the Union.
Heath said that about noon on February 28, Daniel came to the project and
informed him that a nonunion man, Ney, was working on the job. Heath did not
testify concerning any further conversation between him and Daniel but stated
that from past experience he understood that under the Union's ". rules and
regulations we shouldn't work on a job with a nonunion man, we either have to
pull him or he has to be pulled off." Admittedly, Heath did not know of any
official rule or regulation, or local union resolution, to the above effect. Later the
same day Daniel returned and told Heath that he had talked to DePue who said
that he would discharge Ney. He then instructed Heath that "if Mr. Ney wasn't
laid off we would have to pull off the job" and that Heath was to call Daniel the
next day in the event Ney had not been terminated. Ney was discharged the same
day.
The next day Heath became steward on the job and acted in that capacity until
about May 15. As steward, Heath submitted weekly or biweekly reports to the
Union which were signed by all the carpenters on the job and while Heath had no
personal knowledge.that all the.carpenters were union members the fact that they
signed the reports signified to him they were members in good standing.3 Heath
did not know whether the ironworkers, laborers, or other crafts on the project were
members of their respective unions. ,
3 The report for the week ending March 8 was offered and received in evidence at the
hearing and contains the signatures of five individuals including Heath. The report in-
cludes spaces for the "Member's Name" and "Condition of Card," and under this latter
column, opposite the names of the individuals, the month March appears in four instances
while February appears for the remaining individual.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Respondent Employer's case
DePue testified 4 he has been a member of the Harlingen local of the carpenters'
union for about 8 or 9 years and was superintendent for Uhlhorn on the Hondo
project, which consisted of the construction of 8 buildings each containing 4 apart-
ments and 1 small service building. The project commenced about December 10,
1956, and was apparently completed May 15, 1957, since he said an inspection was
scheduled for May 16. DePue said that in the early part of January, Ney applied
for a job and he informed him he had no openings at that time but to come back
later. In the course of their conversation Ney stated he was not a union member
and DePue told him that was immaterial, he did not care whether he was or was
not a member of the Union. Sometime later, DePue could not fix the date, Ney
again applied for a job and he advised him that he had some ironwork available.
Ney asked what the job paid and DePue told him $2.75 an hour, the same as carpenter
work, whereupon he was hired as an ironworker. DePue said he did not at any
time thereafter inform Ney that he was working in any other classification or cate-
gory. At the time of Ney's employment DePue had about 10 or 12 nonunion men
on the job employed as laborers, carpenters helpers, and cement finishers. In this
respect he stated that Uhlhorn had on several occasions given him orders that he
was not to discharge an employee because of his membership or nonmembership
in a union and that he had followed those instructions.
DePue said that on one occasion Daniel told him he would like to get Ney in
the Union and he replied it was immaterial to him, that if he wanted to talk to
Ney he could do so. DePue also informed Ney that Daniel wished to speak to him
and Ney said he would be glad to talk to Daniel. On the same day that Ney was
discharged DePue introduced Daniel to him on the project and then left. There-
after, Ney came to DePue and asked, "What are you going to do about it," and
DePue, who was thinking about Ney's failure to carry out work instructions (as set
forth below) answered, "I don't know." Ney then made some remark about not
joining the Union or that it was not worth $100 to join but DePue was not interested
in that part of the conversation and started up the saw to cut material. Later that
day Ney was laid off. DePue denied that Daniel, or any representative of the Union,
ever requested him to discharge Ney because he was not a union member. He
admitted that as Daniel was leaving the project that day he asked him to send 3
or 4 men to the job and they reported the next morning . DePue also hired 1 or 2
men on the job site the same morning.
Counsel stipulated that the weekly payroll for the period February 21 to 27, and
February 28 to March 6, shows that 4 and 6 carpenters, exclusive of Ney, were
employed in those respective periods and that 13 carpenters were employed in the
period March 7 to 13.
DePue testified that during the morning of Wednesday, February 27, he told Ney,
who was installing aluminum windows "to get the fins on windows for one building
and get them installed" 5 because the subcontractor for the ironwork was "getting
pretty close" and it would be easier to get the windows in place prior to the instal-
lation of the "bulb tees." 6 Ney put the fins on all the windows and then installed
them on the sides of two buildings, omitting the installation of the end windows,
instead of completing each unit. About 9 or 10 o'clock Thursday morning, February
28, Ney was still installing the side windows exclusively, so he repeated the instruc-
tions issued the previous day. Ney continued to install only side windows but later
in the afternoon began putting the end windows in the buildings . Sometime that
day or at least prior to Daniel's visit to the project, DePue had decided to discharge
Ney at the end of the shift for insubordination. At quitting time that day DePue
discharged Ney for that reason although he did not inform Ney as to the cause of
his discharge.
W. B. Uhlhorn stated that while DePue had full authority to discharge employees
for cause he was instructed that membership or nonmembership in a union was not
to be considered in the hiring or firing of employees. Uhlhorn said he did not know
either Ney or Daniel and that he met them for the first time at the hearing herein.
' DePue was also called as a witness by the General Counsel under Rule 43 (b) of the
Federal Rules of Civil Procedure.
6 He described the fins as "a little angle that bolts onto the side of the sash that slide
or fasten into a slot in the masonry block."
6 The bulb tee runs crosswise on top of the bar joint.
W. B. UHLHORN 1093
The Payroll Records
DePue testified that he telephoned information to Uhlhorn's office at Harlingen,
about 300 miles from Hondo , and on the basis thereof a weekly payroll was
prepared which was sent to him for checking and for signature and acknowledge-
ment before a notary public . The payroll was then filed with Texas Aviation
Industries . An official of that company appeared at the hearing with the original
records and counsel stipulated that for the period ending January 9, Ney's classifi-
cation is typewritten on the payroll as carpenter which is changed in the handwriting
of DePue to that of ironworker ; for the periods ending January 16 , 23, 30, and
February 6, he is classified as an ironworker , and for the periods ending February
13, 20, 27, and March 6, the typewritten records show his classification as carpenter
which in each instance was changed to ironworker by DePue. DePue said he
informed his home office that two men had been classified as carpenters instead
of ironworkers but apparently the changes were not made at the home office, so
he corrected the original payroll when submitted to him.
Uhlhorn said that his copy of the payrolls shows only one change in Ney's
classification as a carpenter and that for the week ending January 9, when he was
changed to ironworker . Uhlhom said that about 2 weeks prior to the hearing
his records were checked with those submitted to Texas Aviation Industries and
slight discrepancies appeared which were in the process of being corrected.
C. The Respondent Union's case
Daniel stated that on one of his visits to the project around February 7, Heath
informed him that Ney was a pretty fair carpenter and he believed if Daniel
talked to him he would become a member of the Union . Daniel from previous
visits knew Ney was performing an ironworker 's job and told Heath if Ney was a
qualified carpenter the Union would be glad to have him as a member. On
February 28, Daniel returned to the job and Heath advised him that Ney wanted
to join the Union . Daniel replied if it was satisfactory with the Employer he
would talk to Ney . He then asked DePue for permission to speak to Ney and
DePue said it was all right and introduced him to Ney . Daniel informed Ney that
he understood that he wanted to come into the Union and Ney said he had been
talking about it and was willing to pay $ 3 per month permit money . Daniel
explained that the Union did not issued permits and he was not allowed to take
money from anyone unless he was a member of the Union . Ney replied he would
not pay $100 to join because he had been a member at one time and "got a bad
deal out of it." Daniel thanked Ney for his time and excused himself . He denied
that he threatened to have Ney discharged if he did not become a union member
but admitted he told Ney that he and Alvardo "would finish the job without me
because Hector [Alvardo] is a union men and I hadn 't bothered him on the job."
Following this conversation Daniel told Heath he must have been misinformed -
that Ney did not desire to join the Union . He denied he advised Heath that he
was pulling the carpenters off the job the next day, if Ney continued to work, or
that he instructed Heath to call him in the event Ney remained on the project. He
further stated that on this date Ney was installing metal windows which was
performed by the ironworkers , not the carpenters . In this respect Daniel testified
he had no authority to pull off the carpenters , that the union membership must
vote on whether a strike is to be declared but in any event a strike could not be
called on this project because Uhlhorn was paying the prevailing wage. When
asked by the General Counsel if he did not want to stop Ney using carpenters' tools
unless he was a member of the Union , Daniel answered , "No, sir . I didn't want
him using-he was an ironworker . Then we would be getting into a jurisdictional
dispute."
During February there were 5 or 6 carpenters on the job, some of whom could
have been nonunion men. Daniel admitted that he had referred at least 2
carpenters to the job but he could not recall whether he furnished any men on
March 1 . He also stated that Heath was union steward on the project succeeding
one Mosely , who was discharged after working about 1 week . Daniel said he
did not learn of Ney's discharge until about 2 weeks after it had occurred since he
was out of the area during that time.
D. Ney's testimony concerning his alleged failure to follow instructions
Ney testified that on Wednesday preceding his discharge, he and DePue examined
a package of fins and found that they were all for one side of the windows, instead
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of being in pairs, so he told DePue he might as well drill them on the frames,
which was satisfactory to DePue. In all Ney drilled about 40 fins which required
about one-half day's work. Ney denied that DePue instructed him to put the
fins in I building before starting a second building. The following day DePue
told Ney to put the windows in the sides of the buildings and when Ney said he
needed a helper DePue sent a man to him. About 11:30 that morning DePue
told Ney to put the windows in the ends of the buildings, which he did, and when
he was terminated late that day Ney had just about completed buildings numbers
5 and 6. Ney, who had been a foreman carpenter, said he was far enough ahead
of the ironworkers but as long as DePue wanted him to put in the end windows,
it was immaterial to him, that it was the foreman's responsibility and, "As long
as I satisfied the foreman that's all I have to look out for."
E. The amendment to the complaint issued against the Respondent Union
At the conclusion of the taking of testimony, the Trial Examiner, without objec-
tion, granted the General Counsel's motion to amend paragraph 7 of his complaint,
as italicised, to allege that the Union by attempting to cause or by causing Uhlhorn
to discriminate against Ney because he was not a member in good standing and
by its bylaws and trade rules of Local No. 14, thereby engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
The only evidence offered to support the amendment is the testimony of Heath
concerning his understanding of the rules and regulations of the Union, as set
forth above, and the Union's bylaws and trade rules. The latter were received in
evidence upon stipulation by counsel for the Respondents as to their authenticity,
without conceding their materiality to the issues herein. The principal provisions
of the trade rules cited by the General Counsel to support his amendment provide
in substance:
That a union foreman who allows anyone other than union members to do
work involving the use of carpenter tools, except a hammer or wrecking bar,
shall be debarred from acting as foreman for 6 months during which time no
member may work under him, and that the foreman is responsible for any
infringement of these rules. (Article VII, Section 4, p. 13) That no car-
penter shall work on a job where carpenters employed refuse to abide by
these working conditions, nor shall any carpenter work for any contractor who
refuses to abide by these conditions, and any member violating these rules
shall be subject to a fine of not less than $25. (Article VIII, Section 6, p 25)
Concluding Findings
It is undisputed that there was no contract or arrangement between Uhlhorn and
the Union which required membership in the Union as a condition of employment.
Consequently, the only issue presented is whether the record supports the General
Counsel's contention that the Union caused Uhlhorn to discriminate against Ney
because of his nonmembership therein, and that Uhlhorn discharged him for that
reason. Of course, if the record establishes that Ney was discharged under such
circumstances then the Respondents engaged in unfair labor practices as alleged in
the complaints.(Sub Grade Engineering Company, 93 NLRB 406, 417; White Oak
Park, et al., 98 NLRB 376, 384; Local Union 595, etc. (R. Clinton Construction
Company), 109 NLRB 73, 75).
The evidence adduced by the General Counsel shows that Ney was employed by
DePue at the job site, knowing that he was not a member of the Union. It is also
plain that Ney was hired as an ironworker and, while he undoubtedly performed
carpenter work during his employment, at the time of his discharge he was working in
a category which could be done by either ironworkers or carpenters. According
to Ney, he first learned that his nonmembership in the Union was being discussed
when he overheard Daniel, Heath, and Alvardo talk about that subject at some
unstated date. Oddly enough, Heath made no mention of any such discussion. In
any event Ney informed DePue of what he had heard and volunteered that he was
willing to take out a union permit . DePue simply commented that he was glad to
hear of Ney's decision and offered to introduce him to Daniel. However, the next
day DePue told Ney to let the matter ride. Apparently, around that time, when-
ever it was, Heath, after some discussion with DePue in regard to Ney joining the
Union, spoke to Ney about becoming a member but he gave no indication that he
ever reported his activities to either DePue or Daniel.
W. B. UHLHORN 1095,
Heath related that around noon of February 28, Daniel informed him a nonunion
man, Ney, was working on the job . According to Ney sometime later that afternoon
DePue introduced him to Daniel and then left. Daniel declared that he would be
glad to have Ney join the Union and when Ney offered to take out a permit Daniel
explained that the Union no longer issued permits and if he desired to become a
member he would have to pay the usual initiation fee of $100 . Ney refused to loin;
under such conditions and pointed out that Uhlhorn could not discriminate against
him because of his nonmembership in the Union . Daniel advised Ney that if he
could not do so then he and Alvardo could finish the job and left.- Ney thereupon
went to DePue and informed him that he could not see any advantage in paying the
union initiation fee and DePue replied that under the circumstances he would prob-
ably do the same thing . In response to Ney 's inquiry as to what would happen to
him, DePue said he had not made up his mind. Later that day, as stated by Heath,
Daniel told him DePue had agreed to discharge Ney and if he was not terminated
he would have to pull off the job. He further instructed Heath to telephone him the
next day in the event Ney had not been discharged . Ney was laid off at quitting time
that day. No reason was given for his layoff, nor did he ask for the reason therefor.
The Trial Examiner is convinced that the testimony of Ney and Heath is insuf-
ficient to sustain the allegations of unfair labor practices on the part of Uhlhorn and
the Union . Certainly it cannot be said that Uhlhorn or DePue entertained any pro-
union -attitude for Ney was hired knowing that he was not a member of the Union.
Nor is there any evidence that DePue questioned Ney concerning his nonmembership
in the Union or that he at anytime informed Ney that membership in the Union was
necessary in order to work on the project. The' fact that Ney and other nonunion
men worked on the job refutes the idea that Uhlhorn was operating under any
arrangement with the Union , or other unions , whereby only union members were
employed. Although Ney advised DePue of his intention to join the Union , or take
out a permit , and invited discussion on the subject , nevertheless , DePue refrained
from uttering any comments or taking any action even remotely suggesting that he
had to do so to remain on the job. Ney's assertion that DePue remarked he did not
wish to jeopardize Alvardo's union card and that "they 'll" pull the carpenters and
other workers off the job is general and vague and wholly inadequate to warrant the
inference that DePue thereby warned Ney he would be discharged unless he joined
the Union . Heath by indulging in farfetched assumptions attempted to support
Ney's position that he was unlawfully discharged . Thus, Heath assumed that the
Union 's rules prohibited a member from working with a nonunion man, so Uhlhorn
employed Ney as an ironworker in order that he and Ney might work together with-
out violating those rules . Heath's convenient conclusion is completely unfounded
for he admitted he knew of no such union rule or regulation , much less its enforce-
ment on this job, and his contention that Ney was classified as an ironworker to
circumvent these rules is strictly his own supposition . While Heath and DePue may
have talked about Ney joining the Union he makes no claim that DePue ever indi-
cated that Ney's continued employment was conditioned upon his becoming a
member of the Union . Heath concluded his testimony by stating that on February
28, Daniel told him DePue had agreed to discharge Ney, apparently because of his
failure to join the Union . Since this testimony is pure hearsay insofar as it pertains
to Uhlhorn it is inadequate to sustain a finding of unfair labor practices by Uhlhorn.
Ney seemingly first learned that his nonmembership was being discussed when, at
sometime , he overheard Daniel , Heath , and Alvardo mention that fact in the course
of their conversation . Although Heath did 'not refer to any such conversation, he
did talk to Ney about joining the Union . Ney's only meeting with Daniel took place
on February 28, at which time Daniel simply stated he would be glad to have him
as a member . Ney, though willing to take out a permit , refused to pay the customary
fee. There is no claim by Ney that Daniel threatened or warned him that he had
to join the Union to remain on the job. However, Ney construed Daniel's remark
that he and Alvardo could finish the job to mean that Daniel was pulling the other
carpenters off the job. At that time there were 4 or 6 carpenters employed , exclusive
of Ney. In the opinion of the Trial Examiner Ney's interpretation of Daniel's
remark is neither reasonable nor plausible . Since Ney had been working for about
2 months without Daniel even speaking to him , plus the absence of any threats or
warnings , the Trial Examiner is convinced that when Daniel stated Ney and Alvardo
could finish the job he meant just that and nothing more. Heath 's testimony con-
cerning Daniel 's announcement to pull the job if Ney was not discharged would
be an important element to be considered with other evidence indicating discrimi-
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation, but standing alone it is insufficient to support a finding that the Union unlaw-
fully caused or attempted to cause Uhlhorn to discriminate against Ney.
The Trial Examiner attaches no significance to the fact that Daniel sent two car-
penters to the job the day after Ney's discharge for there is no contention that
Uhlhorn and the Union were parties to any unlawful hiring arrangement. In this
connection it might be pointed out that the steward's report submitted by Heath
to the Union for the week ending March 8, was signed by five carpenters, which
indicated to Heath that they were all union members. However, counsel stipulated
that for the week ending March 6, there were 6 carpenters on the job and that 13
carpenters were employed between March 7 and 13. While the record does not
disclose the precise hiring dates of these carpenters it is clear, in the light of Heath's
testimony, that Uhlhorn employed nonunion carpenters subsequent to Ney's dis-
charge. Moreover, as Heath continued on the job until about May 15, it is reason-
able to infer that he worked with nonunion men, which completely negates his
assertion that union rules prohibited members from working with nonunion men
on this project.
The Trial Examiner is of the opinion, and finds, that Ney and Heath sought to
establish the alleged illegal discharge herein by drawing favorable conclusions in
order to create that impression. However, these conclusions are based primarily,
if not exclusively, upon assumptions and suppositions which are neither reasonable
nor plausible on the basis of their own testimony. Apart from these unwarranted
inferences, their testimony establishes only that Ney was terminated following an
innocuous conversation with Daniel in regard to his becoming a union member.
Evidence of this character is wholly inadequate to support a finding that Uhlhorn
and the Union dngaged in unfair labor practices as alleged in the complaints:
For the reasons stated above, the Trial Examiner also finds that there is no
credible evidence to support the allegations of the amended complaint, namely, that
the Union maintained and enforced illegal working rules on the job.
In view of the foregoing findings it is unnecessary to discuss at length the evidence
offered by the Respondents. The Trial Examiner found DePue and Daniel to be
reliable witnesses and accepts and credits their testimony as detailed above. On
the basis thereof the Trial Examiner finds that neither DePue nor Daniel issued any
threats or warnings to Ney concerning his nonmembership in the Union, or made
any statement to him that his employment was conditioned upon his becoming a
member of the Union, or that the Union requested Uhlhorn to discharge him for
his failure to join. At the hearing much time was devoted to Ney's classification
and whether he was performing carpenter work when laid off as well as the question
of whether the Union exercised jurisdiction over employees installing metal window
frames. The only issue presented here is whether the Union caused Ney's discharge
because of his nonmembership, hence, if that was the reason, then it is immaterial
whether he was actually performing carpenter work or if he was even qualified or
eligible to become a member of the Union. Again, although DePue's action in
terminating Ney for failure to carry out work instructions may appear to be severe,
or perhaps suspicious, it cannot be said that the record warrants the inference that
DePue used this as a pretext to eliminate Ney, at the Union's demand, because he
was a nonunion man. According, the Trial Examiner concludes and finds that
Ney's employment was not conditioned upon his joining the Union, that he was not
discharged, at the Union's request, for his refusal to join, but was terminated for
the reason stated by DePue.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of W. B. Uhlhorn, General Contractor, occur in commerce
within the meaning of Section 2 (6) of the Act.
2. Local 14, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent Uhlhorn has not engaged in unfair labor practices as alleged
in the complaint, within the meaning of Section 8 (a) (3) and (1) of the Act.
4. The Respondent Union has not engaged in unfair labor practices alleged in
the complaint, as amended, within the meaning of Section 8 (b) (2) and (1) (A)
of the Act.
[Recommendations omitted from publication.]