Walsh and Kelly

National Labor Relations Board - Board Decisions

Jul 23, 1962

137 N.L.R.B. 1559 (N.L.R.B. 1962)

WALSH AND KELLY 1559
for his termination was with complete justification, and unquestionably supported by
the credited evidence in this record.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is recommended that the complaint herein be dismissed.
Walsh and Kelly and Earl Whitworth
International Union of Operating Engineers, Local Union #150
[Walsh and Kelly] and Earl Whitworth. Cases Nos. 13-CA-
44.50 and 13-CB-1133. July 23, 196.
DECISION AND ORDER
On March 22, 1962, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and are engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent Union filed exceptions to the
Intermediate Report and a supporting brief,' and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Leedom, and Fanning].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. In. so doing, we rely upon the following
facts set forth in more detail in the Intermediate Report.
We find, like the Trial Examiner., that the Respondent Employer,
a partnership doing business under the trade name of "Walsh and
Kelly," hereafter called Respondent Company, violated Section
8(a) (3) and (1) of the Act by paying Earl. WWliitworth a lower
rate of pay per hour than the going rate of pay in the bargaining unit,
because he was not, and is not, a member of Local 150. The Respond-
1 The Respondent Union's request for oral argument is hereby denied as the record, ex-
ceptions, and briefs adequately present the issues and positions of the parties.
137 NLRB No. 174.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent Company is severally liable for the amounts of backpay due Whit-
worth from July 2, 1961, as alleged in the complaint, until the date of
his discharge, October 13,1961.2
The record shows that Whitworth, a member of Local 81, Hod
Carriers and Common Laborers Union, was first employed by Re-
spondent Company on April 1, 1954, as a laborer. In April 1956, he
was transferred to operate the dryer, which placed him within the
bargaining unit represented by the Respondent Union. He continued
to operate the dryer until his discharge. For some years Whitworth
was desirous of receiving the engineer's rate of pay rather than the
laborer's rate and believed that: "The way everybody get[s] their
raise is 'by getting into unions." On October 12, 1961, Whitworth went
to the office of Local 150. There Whitworth advised Oliver, a busi-
ness agent, that he did not belong to the Engineers' Union and had
not received engineer's pay; and that he wanted to join the Union or
pay agency shop dues. Oliver attempted to call Simons, office man-
ager at Walsh and Kelly, but was unable to reach him until after
Whitworth had left. Oliver promised Whitworth to do the right
thing by him.
According to the uncontradicted testimony of Simons, Oliver talked
to Simons and, after confirming the fact that Whitworth had been
on the dryer for some time, told Simons he would be out the next day
to sign Whitworth into the Union.
Later that same evening, Lloyd Carver, another business agent of
Local 150 who handled the Walsh and Kelly contract, called Simons.
Carver stated he was opposed to taking Whitworth into the Union
at that time and that he had "other people that were members of the
union of long standing, and felt that their people should be put on
their equipment and the laborers should be assigned to work within
their jurisdictional rights." Simons testified that Carver requested
that Whitworth be put back on his old job and when told that the old
job no longer existed, Carver replied; "Well, that's your decision to
make as to what you do with him." According to Carver' s account
of the conversation, he told Simons to "put the laborers where the
laborers belong and put the operating engineers where the operating
engineers belong and stop laying them off."
2 At this time, we do not pass upon the amount of backpay due Whitworth At the
hearing , the Respondent Company withdrew its answer to the consolidated complaint, and
the Trial Examiner granted General Counsel 's motion for a summary judgment against
Respondent Company. After issuance of the Intermediate Report , the Respondent Com-
pany filed no exceptions , but the General Counsel filed with the Board a "Motion To Amend
Consolidated Complaint ," alleging that the "going rate of pay " Whitworth should have
received was $3 30 per hour rather than $3 80 per hour as originally charged. Since there
is no evidence in the record as to Whitworth ' s appropriate rate of pay , we shall only
order the Respondent Company to pay Whitworth what he would have received but for
the discriminatory withholding . The "going rate of pay " may be more adequately deter-
mined at compliance proceedings. ,
WALSH AND KELLY 1561
The next day, October 13, 1961, Simons called Carver and it was
decided between them that Andrew Lee Charters would start the next
Monday morning on the dryer. Charters, who had worked for Re-
spondent Company for 3 weeks, was a member of Local 150. Whit-
worth, an employee in the appropriate bargaining unit for 51/2 years,
was then advised by his foreman that he would be replaced at the end
of the workday.
The Trial Examiner found, and we agree, that the Respondent Com-
pany discriminatorily discharged Earl Whitworth because he was
not a member of Local 150 in violation of Section 8(a) (3) and (1)
of the Act; and that the Respondent Union caused the Respondent
Company to discriminate against Whitworth because he lacked mem-
bership in that Union, thereby violating Section 8 (b) (2) and (1) (A)
of the Act 3
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. The Respondent Company, Walsh and Kelly, Gary, Indiana,
its partners, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in International Union of Operating
Engineers, Local Union #150, by discharging or transferring em-
ployees, or by refusing to hire applicants for employment because
they are not members or have not obtained referral from the said
labor organization, or by discriminating against them in any other
manner in regard to their hire or tenure of employment, or any other
term or condition of their employment.
(b) Withholding higher wages and proper rates of pay from em-
ployees in the operating engineers bargaining unit because employees
are not members of the Respondent Union.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Earl Whitworth immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights or privileges.
(b) Jointly and severally with the Respondent Union make Earl
Whitworth whole for any loss of pay suffered by reason of the dis-
8 The Respondent Union excepted to the Trial Examiner 's reliance on certain testimony
objected to as hearsay . As we do not rely upon that testimony in reaching our conclusion,
we find it unnecessary to pass upon this exception.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crimination against him from the date of his discharge to the date
of the offer of reinstatement, less any intermediate earnings.
(c) Make whole Earl Whitworth for the losses of pay he suffered
by reason of the Respondent Company's discriminatory denial, be-
cause of nonmembership in Respondent Union, of the rate of pay he
should have received as an employee within the appropriate unit from
July 2, 1961, to the date of his discharge, October 13, 1961.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amounts of backpay due
under the terms of this Order.
(e) Post at its offices and at its construction sites within the geo-
graphical jurisdiction of the Respondent Union, copies of the notice
attached hereto marked "Appendix A." 4 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent Company, be posted im-
mediately upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent Company to insure that said notices are not
altered, defaced or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e), above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein marked "Ap-
pendix B."
(g) Mail to the Regional Director for the Thirteenth Region signed
copies of the notice marked "Appendix A" for posting by the Re-
spondent Union, as hereinafter directed.
(h) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
B. The Respondent Union, International Union of Operating Engi-
neers, Local Union #150, its officers, agents, representatives, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent Company to
discharge, transfer, decline to hire, or otherwise discriminate against
employees or applicants for employment because they are not
members of the Respondent Union or because they have not been re-
ferred from the Respondent Union.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
WALSH AND KELLY 1563
(b) In any other manner restraining or coercing employees or ap-
plicants for employment in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Company make Earl
Whitworth whole for any loss of pay suffered by reason of the dis-
crimination against him from the date of his discharge to the date of
the offer of reinstatement, less any intermediate earnings.
(b) Send written notice to the Respondent Company, with a copy
thereof furnished to Earl Whitworth, that it has withdrawn its ob-
jection to the employment of the latter, and that it has no objection
to his employment or that of any other employee or applicant, based
upon lack of membership in, or referral from, the Respondent Union.
(c) Post at its offices, copies of the notice attached hereto marked
"Appendix B." 5 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by
the Respondent Union's representative, be posted immediately upon
receipt thereof, and be maintained by the Respondent Union for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure that the said notices
are not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions as set
forth in (c), above, and as soon as they are forwarded by the said
Regional Director, copies of the Respondent Company's notice herein
marked "Appendix A."
(e) Mail to the Regional Director for the Thirteenth Region signed
copies of the notice marked "Appendix B" for posting by Respondent
Company as provided herein.
(f) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
6 See footnote 4, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in International Union of
Operating Engineers, Local Union #150, by discharging or trans-
ferring employees, or by declining to hire applicants for employ-
ment, because they are not members of the above-named Union
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or because they have not been hired through or with the approval
or clearance of the above-named Union, or by discriminating
against them in any other manner in regard to their hire or tenure
of employment or any other term or condition of their
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exer-
cise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own free choice, and 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.
WE WILL offer Earl Whitworth immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights or privileges, and
jointly and severally with International Union of Operating
Engineers, Local Union #150, make him whole for any loss of
pay he may have suffered by reason of the discrimination prac-
ticed against him; we will also make him whole, severally, for loss
of pay while working in the unit of operating engineers between
July 2, 1961, and the date of his discriminatory discharge.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of International Union of Operating
Engineers, Local Union #150, or any other labor organization. We
will not discriminate in regard to hire or tenure of employment, or any
other condition of employment, against any employee because of mem-
bership in, or activities on behalf of, any such labor organization.
WTALSH AND KELLY,
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.
Employees may communicate directly with the Board's Regional
Office, Midland Building, 176 West Adams Street, Chicago, Illinois,
Telephone Number, Central 6-9660, if they have any question con-
cerning this notice or compliance with its provisions.
APPENDIX B
To ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL UNION #150, AND TO EMPLOYEES OF WALSH AND KELLY
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 you that :
WALSH AND KELLY 1565
WE WILL NOT cause or attempt to cause Walsh and Kelly, to
discharge or transfer employees, or to decline to hire applicants
for employment because they are not members of our organiza-
tion, or because they have not been hired through, or have not
obtained approval, clearance, or job referral from our organiza-
tion, or to discriminate against them in any other manner.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, Walsh and Kelly, in the
exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own free choice, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL send written notice to Walsh and Kelly and to Earl
Whitworth that we have withdrawn our objection to the employ-
ment of the latter, and that we have no objection to his employ-
ment or to the employment of any other employee or applicant,
based upon lack of membership in our organization or lack of
clearance or referral by our organization for employment.
WE WILL jointly and severally with Walsh and Kelly make
whole Earl Whitworth for any loss of pay he may have suffered
as a result of the discrimination practiced against him.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION #150,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Midland Building, 176 West Adams Street, Chicago, Illinois,
Telephone Number, Central 6-9660, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner James A. Shaw in Chicago,
Illinois, on January 3, 4, and 5, 1962, on a consolidated complaint by the General
Counsel alleging that Respondent Walsh and Kelly, herein called the Company,
violated Section 8(a)(1) and (3) of the National Labor Relations Act, and that
Respondent International Union of Operating Engineers, Local Union #150, herein
called the Union, violated Section 8(b)(1)(A) and (2) of the Act. All parties
were represented and participated in the hearing and, at the close thereof the Gen-
eral Counsel and counsel for the Respondent argued orally on the record. All
parties filed briefs with the Trial Examiner on or about February 20, 1962, which
he has duly and carefully considered.
On February 20, 1962, counsel for the Respondent Union filed with the Trial
Examiner a motion to correct typographical errors in record. Thereafter on Feb-
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruary 23, 1962, counsel for the General Counsel filed with the Trial Examiner a
motion supporting in part and opposing in part motion to correct typographical
errors in record.' After careful consideration of the foregoing in the light of the
record considered as a whole, the Trial Examiner hereby grants the Respondent
Union's motion to correct the record in all respects, except as to items (9) and (11)
thereof. As to these items the Trial Examiner accepts the General Counsel's
motions to correct the record and opposition thereto in the following respect:
Item 9, page 201, line 24, the word "fashion" is corrected to read "facet."
Item 11, page 353, line 7, to stand uncorrected in the record.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges, the parties stipulated at the hearing herein, and the Trial
Examiner finds that: 2
John R. Walsh, Thomas O. Walsh, John F. Kelly, Richard W. Kelly, James M.
Kelly, Joseph P. Kelly, William R. Kelly, Thomas L. Kelly, Nancy Walsh, and
Eileen Walsh (herein jointly called Respondent Company) are, and have been
at all times material herein, copartners doing business under the trade name
and style of Walsh and Kelly.
At all times material herein, the Respondent Company has maintained its
principal office and place of business at 3500 West 47th Avenue, in the city
of Gary, State of Indiana, and maintains other facilities in the States of
Michigan, Tennessee, Kentucky, and Texas, and is, and has been at all times
material herein, engaged at said plants and facilities as asphalt paving
contractors.
During the calendar year 1960, Respondent Company, in the course and
conduct of its business operations, performed for various customers services,
and furnished materials, valued in excess of $1,500,000.
During the calendar year 1960 Respondent Company, in the course and
conduct of its business operations, purchased crushed stone and asphalt cement
valued in excess of $125,000, of which goods and materials valued in excess
of $100,000 were transported to Respondent Company's plants and facilities
directly from States of the United States other than the State of Indiana.'
Upon all of the foregoing, the Trial Examiner finds that the Respondent Company
is now , and has been at all times material herein, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upon the record as a whole and the stipulation of the parties at the hearing herein,
the Trial Examiner finds that International Union of Operating Engineers,, Local
Union #150, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 4
As the Trial Examiner sees it no proper understanding of the issues herein could
be had without setting forth in some detail the allegations in the complaint as
'The above motions have been identified and placed in the record as Trial Examiner's
Exhibits, as hereinafter noted: No. 1, Respondent Union's motion to correct record, and
No. 2, General Counsel's motion in support and opposition to Trial Examiner's Exhibit
No. 1.
Prior to the above stipulation the Trial Examiner had granted a motion for summary
judgment against the Respondent Company, infra, consequently the parties' stipulation
are the General Counsel and counsel for the Respondent Union.
3The complaint alleges ". . . other than the State of Illinois" The Trial Examiner
corrects paragraph II(d), line 6, to iead " . other than the State of Indiana "
4 Before proceeding further the Trial Examiner desires to point out to all concerned that
he has been greatly perturbed by the "confused" state of the record herein, mechanically
WALSH AND KELLY 1567
amended . This is so because of the fact that the trial Examiner granted the General
Counsel's motion for a summary judgment against the Respondent Company at
the hearing herein under circumstances that will be discussed and disposed of in
more detail below.
The complaint herein is predicated upon charges filed by Earl Whitworth, an
individual, on September 25, 1961, against the Respondent Company; 5 and there-
after on October 25, 1961, against both of the Respondents herein.
In his original charge, Whitworth alleged in substance that the Respondent Com-
pany had discriminated against him since on or about April 3, 1961, in regard to
his terms and conditions of employment. The charges filed on October 25, 1961,
against both of the Respondents herein alleged in substance that he had been dis-
charged by the Respondent Company at the demand of the Respondent Union.
Upon these charges the Regional Director issued his consolidated complaint against
the Respondents herein. For reasons stated above a detailed resume of the allega-
tions in the consolidated complaint follows below.6
The complaint alleges that at all times material herein the following named per-
sons were and are agents of the Respondent Union, Roy Oliver and Lloyd Carver,
and that the following were and are agents of the Respondent Company, Robert W.
Simons, office manager, and Marlin W. Johnson, plant foreman. As to the unfair
labor practices, the complaint alleges in substance that on or about October 13, 1962,
the Respondent Company discharged Earl Whitworth because he was not a member
of the Respondent Union, and that the Respondent Union, by its officers and agents,
on or about October 12, 1961, attempted to cause and did in fact cause Respondent
Company to discharge Earl Whitworth because of his lack of membership in Re-
spondent Union. The amendment to the complaint further alleges in substance
that the Respondent Company further discriminated against Whitworth since on
or about July 2, 1961, and thereafter by paying him less per hour than the "going
rate of pay" because he was not a member of the Union.7
On or about December 5, 1961, the Respondents herein filed with the Regional
Office a joint answer to consolidated complaint, in which they denied each and every
allegation in the original complaint, except paragraph 1, which set forth the fact
that Earl Whitworth, an individual, had filed the charges herein, and requested that
the complaint herein be dismissed.
At the hearing herein the General Counsel moved to amend the complaint fur-
ther as to the Respondent Union. The Trial Examiner finds the primary purpose
of the General Counsel to amend the complaint was to "strengthen" the allegations
in paragraph VIII of the complaint as regards the conduct of the Respondent Union.
After due consideration the Trial Examiner granted his motion to amend. As a
result paragraph VIII of the complaint, as amended, for reasons discussed below,
became one of the principal issues litigated at the hearing herein.
Before proceeding further as regards the issues herein, the Trial Examiner desires
to point out to all concerned that at the onset of the hearing herein, when the Trial
and otherwise With that thought in mind he makes the following comment, In the first
place he assuies the parties that he has based all of his findings herein upon the record,
considered as a whole, which he has read and reread many times, and from his observa-
tion of the witnesses who testified at the hearing herein Due to the confusion in the
record, particularly as regards the usage of the phrases "unit" and "union" and their
materiality as regards the issues herein, it would unduly protract this report to sum-
marize all the testimony or to spell out fully the confusion and inconsistencies therein,
particularly as to whether they were used as argument by counsel or part and parcel of
the interrogation of witnesses who testified at the hearing herein Consequently the
following is a composite picture of all the factual issues involved with respect to the
Trial Examiner's ultimate disposal of the issues herein. Again, as noted above, the parties
may be assured that in reaching all resolutions of credibility, findings, and conclusions
herein, the record as a whole has been carefully reviewed, relevant cases have been studied,
and each of the contentions advanced by the parties has been duly weighed, even though
not specifically discussed
5 The importance of the charge filed on September 25, 1961, will be apparent below in
that section of this report concerned with the "defenses" advanced by the Respondent
Union at the hearing herein
61Iereinafter referred to as the complaint
7 See section entitled "The remedy," infra
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner requested that counsel or other representatives of the parties state their
appearances for the record, Thomas M. Hodges, Esq., of Gary, Indiana, entered his
appearance as the representative of the Respondent Company. At this point , Bernard
M. Mamet, Esq., who filed the original answer to the consolidated complaint on
behalf of the Respondent Company, withdrew as its counsel , but entered his appear-
ance as counsel of record for the Respondent Union. Shortly thereafter Attorney
Hodges as counsel of record for the Respondent Company stated in substance to
the record that ". . . the Respondent Walsh and Kelly withdraws " its answer ". . . to
all pleadings" in the case at hand. In answer to the following query by the Trial
Examiner ". . . In other words, you withdraw your entire answer ?" Hodges replied,
"Right." s At this point counsel for the General Counsel moved for a summary
judgment on the basis of the pleadings with respect to the Respondent Employer
alone in Case No. 13-CA-4450. After due consideration the Trial Examiner granted
his motion. Shortly thereafter Attorney Hodges left the hearing room and in part-
ing advised the Trial Examiner in substance that the Respondent Employer would
not participate further in the hearing.
Shortly after the Trial Examiner granted the General Counsel 's motion for a
summary judgment on the pleadings, counsel for the Respondent Union moved that
the cases be severed. His motion in this regard was opposed by the General Counsel.
After -hearing oral argument from counsel for the parties in support of their re-
spective positions in this regard the Trial Examiner denied the motion, over the
strenuous objections of counsel for the Respondent Union .9
Counsel for the Respondent Union then moved that the complaint against the
Respondent Union be dismissed in accordance with Section 102.9 of the Board's
Rules and Regulations, Series 8, for the reason that the Charging Party herein, Earl
Whitworth, had filed a "withdrawal of charge" against the Respondent Union prior
to the opening of the hearing herein on January 3, 1962. From the record, the
Trial Examiner found that Whitworth, the Charging Party herein, filed with the
Regional Director for the Thirteenth Region a "form" in which he requested the
withdrawal of the charges herein against the Respondent Union. The exact date on
which he filed his request is not clear in the record; however, counsel for the General
Counsel and the Respondent Union stipulated that the Regional Director formally
denied his request on December 29, 1961, and that Whitworth was so notified of
his action in this regard by telegram on that date.
It is to be noted that at the time counsel for the Respondent Union moved for
dismissal of the complaint for the reason that the Charging Party had requested
that the charges against the Respondent Union be withdrawn, he offered in evidence
a document signed by Whitworth addressed to the Trial Examiner dated January 3,
1962, in which he again requested that the charges against the Union be withdrawn.
For reasons which will be discussed below the Trial Examiner rejected the exhibit
and ordered that it be placed in the "Rejected exhibit file."
Counsel for the General Counsel objected to the Respondent 's motion to dismiss
the complaint. At this point the Trial Examiner suggested to the parties that they
discuss the issue among themselves and granted a recess for that purpose. Shortly
after the hearing reconvened, Earl Whitworth stated to the record: "..., why, I do
not wish to withdraw the charges."
After due consideration the Trial Examiner denied the Respondent Union's motion
to dismiss, for the following reasons. In the first place it is well settled that by the
filing of a charge the Board's machinery, so to speak, is put in motion, and if the
investigation thereof indicates that there has been a violation of the Act by the
party named in the charge, then it is the duty of the Board to investigate and correct
the situation. The function of the charge has been well stated by the Supreme Court
of the United States in N.L.R.B. v. Indiana & Michigan Electric Company, 318
U S. 9, 17.10 In that case the Court speaking through Mr. Justice Jackson had the
following to say:
The charge is not proof. It merely sets in motion the machinery of an inquiry.
When a Board complaint issues the question is only the truth of its accusations.
8 Quoted portions from the record
0 See Respondent Union's brief in this regard For this and other reasons which are
apparent in the record the Trial Examiner deems further comment unnecessary.
10 See also Pueblo Gas & Fuel Company, 23 NLRB 1028 ; General Furniture llfanufactuo-
inq Company, 26 NLRB 74; Atlas Powder Company, Zapon Division, 43 NLRB 757; and
Donnelly Garment Company, 21 NLRB 164
WALSH AND KELLY 1569,
The charge does not even serve the purpose of a pleading . Dubious character,.
evil or unlawful motive , or bad faith of the informer cannot deprive the Board
of its jurisdiction to conduct the inquiry.
At the close of the hearing herein counsel for the Respondent Union renewed his
motion to dismiss the complaint . The Trial Examiner reserved ruling thereon. For
reasons which will be apparent below the motion is hereby denied.
A. The parties involved herein
As indicated above the Respondent Company is a copartnership engaged primarily
in the highway construction business in the States of Indiana , Michigan , Tennessee,
Kentucky , and Texas . Its principal office and place of business is in Gary,
Lake County, Indiana. We are primarily concerned herein with its operation in the
counties of LaPorte , Lake, and Porter , Indiana, which are located in the northwest
corner of the State.
The business of the Respondent was the preparation of asphalt mix and its ap-
plication to highways under either construction or repair. We are primarily con-
cerned herein with the employees at its mixing plant and the crew that applied the-
asphalt mix to the roadbeds , at the construction site. Insofar as the record is con-
cerned the following-named persons were supervisory employees of the Employer at
all times material herein, Superintendent Tom Walsh , a son of one of the partners,
Robert W . Simons, office manager, Marlin Johnson, plant foreman , and Earl Kulik,
superintendent of the "road gang."
Insofar as the Respondent Union is concerned , the following were its admitted
agents at all times material herein , Roy Oliver and Lloyd Carver. Their duties and
activities will be discussed in more detail below.
Earl Whitworth , the Charging Party herein , was first employed by the Respondent
Company on April 1 , 1954, as a laborer. While so employed his work consisted for
the most part of unloading and cleaning out sand cars at the asphalt plant. He
continued at this type of work until December 1954, when he was laid off. He was
reemployed in March 1955 as a laborer , and worked as such until sometime in April
1956, when he was placed in charge of a "drier" at the asphalt plant, by his foreman,
Marlin Johnson . He continued on this job without interruption until his discharge on
October 13 , 1961. Suffice it to say at this point that Whitworth 's discharge October 13,
1961 , and the circumstances surrounding it is the principal issue with which we are
concerned herein.
B. The relationship between the Respondents
Though the record clearly shows that there was no written agreement between the
Respondents at times material herein , it does show that the Respondent Employer
accepted the terms and conditions of an agreement between the Respondent Union
and four other contractors in the area." As the Trial Examiner sees it the agree-
ment in question was used as a "guide" or "yardstick ," so to speak , by the parties in
their relationship . An examination of the "agreement " shows that it is lawful on the
face. The General Counsel conceded this at the hearing herein. Moreover, the
agreement takes into consideration the fact that Indiana has a "right to work" statute,
and reference thereto is found in the body of the contract . The employees covered
by the agreement are, to say the least , an important issue herein. For this reason
the Trial Examiner feels that at this stage of his report he should consider and dispose
of other issues that either stem from the "agreement " in question , or are at issue
because of its terms and conditions.
Let us first look at the "appropriate unit." By that phrase the Trial Examiner
has reference to the employees that constitute an appropriate group , having common
interests , and entitled to be represented as a group by an agent or a representative
for the purposes of bargaining collectively with their employer regarding questions
concerning wages, hours , and other conditions of employment . While the foregoing
phraseology may seem mere trivia in this day and age, nevertheless the Trial Exami-
ner, after careful perusal of the record , the briefs of the parties , and consideration
thereof in the light of his recollection of the arguments of counsel at the hearing
11 See Respondent Union's Exhibit No. 3.
649856-63-vol. 137-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein , feels that a return by reference to the past , regarding the fundamental duties
,of a bargaining agent, is necessary to understand his ultimate disposition of the
issues herein. By that, the Trial Examiner has reference to the well-established rule
that it is the duty of a recognized or certified bargaining agent to represent all em-
ployees in an appropriate unit regardless of their union or nonunion affiliation. The
relevancy of this principle will be apparent below.
An examination of the agreement in question shows the following as regards the
"appropriate unit," insofar as it is relevant to the issues herein .12
Now Therefore, It Is Hereby Agreed As Follows:
ARTICLE I
SECTION 1. BARGAINING UNIT AND SCOPE-The bargaining unit shall consist
of all employees engaged in work covered by the occupational jurisdiction of
the UNION used in the construction of Streets, Alleys, Roads, Highways and
Superstructers, Grade Separations, Subways (when used in conjunction with a
road job), and Air Ports, whether operated by Steam, Electricity, Gasoline,
Hydraulic Compressed Air, or any other Motive Power including:
Rollers, Boilers, Pumps, Power Shovels, Concrete Mixers, Air Compressors,
Dinky Locomotives, Cableways, Clam Shells, Grading Machines, Stone Crushers,
Power and Elevating Graders, Tractors, Bull Dozers, Loading Devices, Welding
Machines, Asphalt Plants, Tamping, Resurfacing and Finishing Machines,
Mechanical Heaters, Power Concrete Saws, Truck Crane Drivers, or any Other
Equipment or Machines, that properly come under the jurisdiction of the Inter-
national Union of Operating Engineers or may be awarded to the International
Union of Operating Engineers, shall be covered by this Agreement and be per-
formed only by employees in the bargaining unit.
SEC. 2. BARGAINING AGENT-The Employer recognizes the UNION as the
sole and exclusive bargaining agent of all its employees performing work in a
unit as described herein.
SEC. 3. It is expressly understood that the working conditions and wage rates
as set forth in this Agreement hereto attached, are to be identical in all three
counties.
SEC. 4. The Employer agrees that there shall be no discrimination against any
employee who may be an Officer Steward or Member of the Union serving on
any Committee authorized by the Union.
SEC. 5. DISCHARGE-Any employee loafing on the job to extend his time, or
coming on the job under the influence of intoxicating liquors, or bringing intoxi-
cating liquors on the job, may be discharged by his employer, or for any other
just cause. The Employers should notify the Union when they discharge such
employee.
SEC. 6. NOTICE ON LEAVING JOB-No employee shall leave his job without
giving due notice to his Employer , and the Business Representative of the Union.
[Emphasis supplied.]
It is to be noted that "asphalt plants" are specifically set forth in the above excerpt
from the agreement in question. That the machine known as the "drier," which the
Charging Party operated continuously for more than 5 years for the Respondent
Employer before his discharge on October 13, 1961, was an important and necessary
piece of equipment in the asphalt plant is well established in the record. Its function
and operation will be discussed in more detail below.
As indicated above the Respondent Employer's working force is divided into
two groups, the road gang and the group which operates the asphalt plant. The
appropriate unit with which we are concerned with herein includes employees in
both groups. According to the credible testimony of Whitworth, the following
employees worked at the asphalt plant:
1. Williard Johnson-Operated the mixing plant, member of Local 150,
Operating Engineers.
2. Marlin Johnson-Plant foreman, operated a crane part time, member of
Local 150, Operating Engineers.
3. Charlie Battie-Crane operator, member of Local 150, Operating
Engineers.
18 The sole purpose of the above excerpt is to set forth the appropriate unit that we are
concerned with herein.
WALSH AND KELLY 1571
4. Ronald Fisher-Cleans up around the plant, member of Local 81, Hod
Carriers and Common Laborers Union.
5. Jack Hinney-Operates the machinery in the emulsion room, member of
Local 150, Operating Engineers.
6. Broomfield-Laborer, member of Local 81, Hod Carriers and Common
Laborers Union.
7. Earl Whitworth-Operator of the "drier," member of Local 81, Hod
Carriers and Common Laborers Union.
Whitworth further testified in substance that at the peak of the activities around
the asphalt plant there were two or three additional employees at the plant. What
duties they performed is not clear in the record; however, presumably they were
laborers since there was no objections to his testimony regarding the employees who
operated the "mechanical equipment." From this observation the Trial Examiner
finds that Whitworth's testimony 'regarding the "machines" at the asphalt plant
and their operators was an accurate account thereof.
As noted above several of the employees, including Whitworth, were at times
material herein members of the International Hod Carriers Building and Common
Laborers Union of America, Local No. 81.
The agreement we are now concerned with also provides for payments into the
Respondent Union's welfare fund. Since the welfare fund assumes considerable
importance hereinafter as a facet of the Respondent Union's defense to the charges
against it in the complaint, the Trial Examiner feels that more than passing reference
should be made to it in this portion of his report. For this reason he inserts below
The following excerpt from the "Agreement" in question.
ARTICLE V
Welfare Fund
Each Employer shall pay Five Cents ($.05) per hour for each hour worked
by all employees covered by this agreement into the Health and Welfare Fund,
International Union of Operating Engineers, Local # 150, 150A, 150B and 150C.
Payments accompanied by monthly reports on forms provided for same are
due in the Welfare Office, 327 S. LaSalle Street, Chicago 4, Illinois not later
than the Tenth Day of the following month for all hours worked in the pre-
ceding month.
The payments to the Health and Welfare Fund shall not constitute or be
deemed wages due to the employee.
It is understood and agreed that the sole liability of the Employer under this
Welfare Program shall be of the payment of his contribution to the Health
and Welfare Fund at the rate of Five Cents ($.05) per hour for each hour
worked by an employee covered by this agreement. However, if payment is not
in by the 20th of the month, it shall be considered a violation of this agreement
and the Employer will be held liable for any claims that may arise. Said Wel-
fare Fund has been established and is being administered in accordance with
the provisions of the Labor-Management Relations Act of 1947, as amended.
The record shows that representative of the Respondent Union made periodic calls
at the Respondent Employer's office at times material herein for the purpose of either
checking the payroll or collecting from the Company its contributions for the welfare
fund in accordance with the table set forth in the above excerpt from the agreement.
Since, as indicated above, the Respondent Employer's payments into the welfare
fund is an issue herein, the Trial Examiner feels that the form used by employers
in submitting their contributions should likewise be inserted herein consequently
it is reproduced on the following page.
The importance of the welfare fund deductions will be apparent below:
As indicated above the Respondent Employer's operations are at the asphalt plant
and at the construction site. The record is none too clear regarding either the
equipment used at the construction site or the number and duties of its employees
who are employed there. The record shows that the foreman in charge of the
work was Earl Kulik, and that one of the employees was Andrew Lee Charters. The
.only equipment referred to is the "Barber Green," which is a device used to regulate
the application of the asphalt or black top to the roadbed. Since neither Kuhk nor
Charters testified at the hearing herein, the Trial Examiner deems further comment
regarding the personnel on "road gang" unnecessary.
In addition to its "agreement" with Local 150, the Respondent Employer has
agreements with the International Hod Carriers, Building and Common Laborers
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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Union of America, Local 81, hereinafter referred to as the Laborers union The
terms and conditions of this agreement, though not an issue herein, nevertheless
do become of importance in view of the overall defense of the Respondent Union,
as it developed at the hearing herein, especially regarding the wages paid by the
Respondent Employer to Whitworth, and payments to the Laborers union welfare
fund on his behalf. Suffice it to say at this stage of the report that their importance
will be apparent below.
The record also indicates that the Respondent Employer has an agreement with
the Teamsters' union which covers the employees that operate the trucks to and
from the asphalt plant and the construction site. Though there is no issue herein
WALSH AND KELLY 1573
regarding the relations between the Teamsters and the Employer herein, neverthe-
less the subject "crept" into the record, so to speak, during the interrogation of the
witnesses at the hearing herein by counsel for the Respondent Union regarding
temporary assignments of employees from one bargaining unit to another when they
were not working at their regular assignments.
From all of the foregoing the Trial Examiner finds that at times material herein
the Respondent Employer had "agreements" with the following labor organizations,
"Laborers," "Operating Engineers," and the "Teamsters Union."
C. The alleged discriminatory discharge of Earl Whitworth
Though Whitworth's employment history with the Respondent Company has been
briefly referred to above, the Trial Examiner feels that it would be beneficial to
all concerned to reiterate it at this stage of the report. As indicated above Whit-
worth entered the service of Walsh and Kelly in April 1954. He was employed as
a laborer and worked in this capacity around the asphalt plant until April 1956,
when he was placed on the drier by his foreman, Marlin Johnson. It is the latter
job that we are primarily concerned with herein.
According to Whitworth, Foreman Johnson told him in substance at the time
he was placed on the drier that after he had operated it for a few weeks that he
would take him over to the Respondent Union's office and get him into the Union.
He further testified that over the years he not only requested Johnson and other
supervisory employees to get him "into the union," but his fellow workers around
the asphalt plant, who were members of the Union, as well. He was unsuccessful in
his efforts in this regard. Among those he requested to "get him into the union"
was Superintendent Tom Walsh. According to Whitworth's credible and uncon-
tradicted testimony he went to see Walsh at his office sometime in June 1961, and
the following transpired: 13
He said, "If you go over there and get an `A' or a `B' card, 150 members will
come over and bump you." And I told him that I had been to the National
Labor Relations Board on February 25, 1959, and they didn't say that. And
he said, "What did they say." And I said they didn't say that.
The record is replete with testimony and arguments pro and con between counsel
regarding Whitworth's efforts to join the Respondent Union over the years from
1956 to 1961. The resolution of this issue is nigh impossible, but resolved it must
be, and may the chips fall where they may. The importance of this facet of the
instant case is twofold, in the first place the Respondent Union contends that it never
knew that Whitworth was operating the drier at the asphalt plant, and secondly the
reason it was unaware of his status was because the Respondent Company had him
"under wraps," and deliberately "hid" him from the Union, so that it could run
the drier at a saving of approximately 70 cents per hour.14 By that the Trial
Examiner has reference to the fact that throughout the period of his employment
on the drier, Whitworth was paid the laborers' rate of pay $3.10 per hour, while
the rate under agreement between the Respondents herein was $3.80 per hour. Be
that as it may, the Trial Examiner is convinced that both of the Respondents herein
were somewhat derelict in the Whitworth affair. By that the Trial Examiner has
reference to the fact that the record clearly shows that during the 51/z years of
Whitworth's employment as the operator of the drier, an essential part of the equip-
ment at the Respondent Employer's asphalt plant, neither Oliver nor Carver called
at the plant to check on either working conditions or any other phase of the Re-
spondent Employer's operations. To be sure they made periodic calls at the plant
office, but never at the plant itself, some 400 feet away. According to Whitworth's
credible testimony he only saw them five times during the 51/2 years he operated
the drier, and at those times they were not at the plant site but around the offices.
According to Carver their periodic calls at the plant office were to pick up the Re-
spondent Employer's contributions to the welfare fund, particularly since in the
Trial Examiner's opinion their calls for this purpose in and of itself is evidence of
laxness on the part of the Respondent Union. His reasoning in this regard is
predicated on the assumption that Oliver and Carver as business agents for the
Respondent Union were familiar with the equipment ordinarily used in and around
an asphalt plant. Since the drier is an essential part of the processing of the
asphalt mix at the plant they knew or should have known that it was operated by
somebody, that is a person working in the appropriate unit. By that statement the
18 Walsh did not testify at the hearing herein.
14 See infra in this regard.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner means that whoever the person was that was operating the drier
was working on a machine in an asphalt plant; that is "spelled out," so to speak, in
section 1, page 1, of the agreement between the Respondents. An examination of
the monthly report to welfare office, which is set forth above, shows that "Report
shall be computed at 5 cents for each hour worked (including overtime) for all
employees working under the jurisdiction of the International Union of Operating
Engineers, Local 150." As the Trial Examiner interprets the record the Respondent
Employer listed only the employees around the asphalt plant who were members
of the Operating Engineers Union Local 150, and operated equipment, such as the
crane, emulsion plant, and the mixing plant, but omitted the operator of the drier,
which was not only a necessary piece of equipment, but unquestionably a machine
included within the bargaining unit. The record also shows that the drier was a
piece of equipment that required considerable skill to operate, and was not the sort
of an operation that an employer would leave to the haphazard control of an
unskilled and untrained laborer. Nor was it the sort of equipment that could be
easily "hid" from view of those who had occasion to be in and around the plant,
for the reason that it was a cylindrical object 6 feet across and 32 feet long. In
addition it required the constant attention of the person in charge of the operation
(Whitworth at times material herein) to regulate by the punching of control buttons
at the proper moment. For this obvious reason the operator had to be around the
equipment at all times. In the circumstances it would have been physically im-
possible to have "hidden" Whitworth from view, as suggested by counsel for the
Respondent Union, during the periodic visits of Oliver and Carver to the plant. In
addition it would have been most difficult to physically hide Whitworth on such
occasions because he was of medium height and quite portly in appearance 15
From all of the foregoing the Trial Examiner is convinced and finds that both of
the Respondents herein were derelict in their obligations one to another, and to the
employees in the agreed-upon appropriate unit, particularly Whitworth, at times
material herein.
While the foregoing may be considered by some to be "much ado about nothing."
nevertheless it is not so construed by the Trial Examiner. His reasoning in this
regard will be apparent below. Suffice it to say at this time that Whitworth at all
times material herein was employed within the appropriate unit and as such an
employee, the Respondent Union was his bargaining representative regardless of
his union or nonunion affiliation. In the Trial Examiner 's opinion , this factor
cannot and will not be ignored in his final disposition of the complicated issues
herein.is
The Trial Examiner has briefly referred to Whitworth's abortive efforts to "get
into the union" above Though the record contains considerable testimony in this
regard, the Trial Examiner sees no point in belaboring this report with extensive
comment on this phase of the case In his opinion this was a matter for Whit-
worth alone to consummate and not for others, such as his supervisors and coworkers.
Insofar as his unfavorable testimony as regards the refusal of Marlin Johnson, his
foreman, to take him down to the "hall" and "get him in" is concerned, the Trial
Examiner sees no point in cluttering up this report in assaying the record in this
regard. Suffice it to say, Foreman Johnson was at no time material herein obligated
legally or otherwise to "get" Whitworth or any other employee "into the union"
or any other labor organization.
The importance of this phase of the case is what transpired as a result of Whit-
worth's efforts to "get into the union," and the compelling reason behind his
activities in this regard. By that observation the Trial Examiner has reference to
Whitworth's activities that led up to his filing of charges against the Respondent
Employer on September 25, 1962.
Whitworth was very much dissatisfied with the hourly rate he was paid by the
Respondent Employer for operating the drier. He knew that the going rate for
the job was $3.80 per hour under the agreement between the Respondents, and that
he was getting only $3.10 per hour. He was convinced that he was being paid the
lower rate because he was a member of the Laborers union , and not of Local 150
of the Operating Engineers union. This was the reason for his repeated requests
to his foreman, Marlin Johnson, and to his coworkers who were members of the
Operating Engineers union to "get him into the union." That he was distressed by
the predicament he was in is clearly evidenced not only by the activities described
'6 From the Trial Examiner's observation of Whitworth at the hearing herein
le A complicating factor, of course is the summary judgment which the Trial Examiner
granted at the onset of the hearing herein against the Respondent Employer
WALSH AND KELLY 1575
above, but by the further fact that he went to the Board' s Regional Office on Febru-
ary 25, 1959, and discussed his problems with a Board agent. Insofar as this record
is concerned his efforts in this regard were to no avail. He then went to various
other governmental agencies , both State and Federal, to see if they could help
get an increase in pay; what happened on these occasions is none to clear in the
record. Consequently, the Trial Examiner has no further comment in this regard.
Finally, as indicated above he went back to the Board's Regional Office in Chicago,
Illinois, and filed the original charge against the Respondent Employer herein on
September 25, 1961. For reasons which will be apparent below, let us take a look
at the charge in question. An examination thereof shows that the basis of his
charge against the Company was that it had discriminated against him ". . . in
regard to his terms and conditions of employment because of his lack of membership
in a labor organization," which the record clearly shows was the Respondent Union
herein. That the Respondent Employer was perturbed by Whitworth's activities
in this regard is clearly shown in the testimony of Foreman Marlin Johnson at the
hearing herein, where at one point he testified that Whitworth ". . . had made quite
a pest of himself." At another point in his testimony he testified in substance that
Whitworth's activities regarding getting "into the union," calling at the Board's
office, and his complaints to Superintendent Tom Walsh,17 were not only irritating
but that if he persisted in engaging in such conduct that he would "let him go,"
that is "get rid of or discharge him "
At this stage of the report the Trial Examiner desires to point out that though he
had granted a summary judgment against the Respondent Employer herein, prior to
the taking of any testimony, and that there is no allegation in the complaint against
the Respondent Employer that it engaged in conduct violative of Section 8(a)(4)
of the Act, that he, as the trier of the facts, cannot in good conscience ignore the
foregoing testimony and its potentialities in his ultimate disposal of the issues
herein.18 With that statement the Trial Examiner has no further comment in this
regard except to point out to all concerned that here, as in all cases before the
Board, the persons and/or entities involved in its proceedings are not the criterion
with which it is primarily concerned, it is the "Public interest."
Whitworth finally realized that the only way for him "to get into the union was
to do it on his own," so to speak Having reached that decision he went down to
the Union's offices on October 12, 1961, and talked to Roy Oliver, one of the busi-
ness agents referred to above. What transpired at this time will be thoroughly dis-
cussed below.
According to Whitworth's credible and uncontradicted testimony, he had a very
pleasant conversation with Oliver. An excerpt from testimony on direct examina-
tion follows:
Q. Now, what did you say to Mr. Oliver and what did Mr. Oliver say to you?
A. Well, I introduced myself as Earl Whitworth And he-I asked him if he
ever heard that name before. He said yes, he believed he had heard the name
Whitworth before. And I said that I had a brother who was a member there.
So, I told him I was going to get right down to the facts And I told him that
I had been running the drier at Walsh and Kelly since April, 1956, and that I
didn't-and that I wanted to get into his union or pay my agency shop dues.
And with that, he says, "I want to talk to Bob Simons." And he picked up
the phone and called on the phone and said-and told me the line was busy.
Well, then, we talked a few minutes. And he called back and a few minutes
later and he got ahold to somebody at the office, apparently, and told me Mr.
Simons wouldn't be back until 5:00 o'clock.
TRIAL EXAMINER: Please identify Mr Simons.
Q (By Mr. SHERIN) Yes. Who is Mr. Simons?
A. He is the office manager at Walsh and Kelly.
TRIAL EXAMINER: All right, proceed . Excuse me.
Q. (By Mr. SHERIN.) Now, did you then leave the offices of Local 1509
A. Well, he told me that they didn't accept any permit money or agency shop
money, but he would talk to Mr. Simons and do what was right with me. And
I was-and said he would see me within a few days. And I was under the
impression , when I left there, that I would net into the union.
Q. Now, did you then leave their offices?
A Yes.
'a See supra
"The record and the brief of the Respondent Union clearly shows that it relies on
this testimony as one of its major defenses to the issues herein.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the record, Oliver got in touch with Simons after Whitworth left
the union office. Since counsel for the Respondent Union did not see fit to call
Oliver as a witness , nor make any statement to the record as to his availability as
-such , the Trial Examiner must of necessity rely upon Simons ' testimony regarding
their conversation. For this and obvious reasons Simons' version of what tran-
spired after Whitworth left Oliver's office on the afternoon of October 12, 1961,
follows:
Q. What did Mr. Oliver say to you and what did you say to Mr. Oliver in
in that conversation?
A. He stated that Earl Whitworth was either in his office at that time or had
just left his office-I forgot which-and had advised that he was operating a
stone drier at our place. He asked to varify [sic] that. And I told him that
was correct. He stated that he would be out the next day to quote him, "sign
him up in the union." [Emphasis supplied.]
Q. In that conversation when Mr. Oliver stated that he had been talking
to Whitworth and learned Whitworth had told him he had been operating a
drier, did he state Mr. Whitworth said he had been operating the drier for any
length of time?
A. I don't recall his specific time having been mentioned. He said quite
sometime.
Q. Approximately what time did this conversation with Mr. Oliver take place?
A. May be 4:00 p.m. Central Daylight Saving Time.
Simons further testified that sometime after he had the above conversation with
,Oliver, Lloyd Carver called him on the telephone about the "Whitworth deal" that
he and Oliver had discussed.
Here again the Trial Examiner feels that what transpired on this occasion is best
told in the language of the witness. For this reason the following excerpt from
:Simons' testimony is likewise inserted hereinbelow: 19
Q. What did Mr. Carver say to you and what did you say to Mr. Carver?
A. Mr. Carver reported that he had conversation with Mr. Oliver, and had
been advised as to things that had happened concerning the Whitworth deal.
And he stated he was opposed to taking him in the union at that time. He had
other people that were members of the union of long standing, and felt that
their people should be put on their equipment and the laborers should be as-
signed to work within their jurisdictional rights.
Q. What did you say to that, sir?
A. I made mention to the fact that we had notices from the NLRB that
Whitworth had filed an unfair labor practice charge against us, and asked Mr.
Carver if he thought that such a move might weaken our defense. He stated he
didn't feel it would. He was within his rights.
Q. Now, was any reference made to what would happen to Mr. Whitworth,
particularly, with reference to his work by you?
A. Mr. Carver requested that the man be put back on his old job. And I
told him that the old job no longer existed. And he said, well, that's your
decision to make as to what you do with him.
Q. Was anything further said in that conversation that you can recall?
A. Nothing of any consequence. [Emphasis supplied.]
In the main Simons' account of his conversation with Carver regarding the "Whit-
-worth deal" was corroborated by Carver himself. Since Carver's testimony in this
regard goes right to the heart of the primary issue herein, the Trial Examiner feels
compelled to insert the following excerpt therefrom herein below.
Q. Will you tell us what you said to Simons and what he said to you, please?
A. I asked Bob Simons what he knew about this Whitworth being assigned
to our work, when he was assigned to our work. His answer to me, of course,
was that he had been in the hospital, had been sick. And I said, "Oh, I am sorry,
I didn't know that you were in the hospital; I am very sorry to hear that, Bob."
I said, "You must have just recently assigned him to this, because he has not
been included on the health and welfare fund. I have it here in front of me."
He didn't answer me to that. I said to him, "Well, we have a bargaining
agreement with you." Which he acknowledged by saying, "Yes" And I said,
"it states in there that only employees of the bargaining unit shall be assigned
19 That portion of the emphasized testimony of Simons that relates to charges filed by
Whitworth against the Respondent Employer will be referred to below in the Trial
Mxaminer's disposal of another facet of the case at hand
WALSH AND KELLY 1577
to this work. Therefore, put the laborers where the laborers belong and put
the operating engineers where the operating engineers belong and stop laying
them off."
And, of course, that more or less ended the conversation.
Q. Well, during this conversation, did he mention to you anything in reference-
to the National Labor Relations Board?
A. Yes, he did.
Q. Well, if you can recall, what did he say?
Mr. MAMET: What'so funny, Mr. Sherin? Funny that a man relates a con-
versation, and then when I ask him about an incident-what's this? What's
this? Are we in a carnival? What is this?
TRIAL EXAMINER: Let's get on.
The WITNESS: He explained to me that this Earl Whitworth had filed
charges against the company and wanted to know whether doing anything like
this would put the company in jeopardy. And I said I didn't see where this had
anything to do with whether there were charges filed or not. That the collective
bargaining agreement so stated that the operating engineers shall do the work
of the operating engineers. Put the laborers where the laborers belong and put
the operating engineers where they belong.
Q. (By Mr. MAMET.) Did he ask you or did you say to him anything in
reference to-relative to whether this had anything to do with membership in
the union in talking about these charges before the Board?
A. I don't remember whether there was anything said about members or not.
I know I never brought up membership into the union. [Emphasis supplied.]
The upshot of the conversations between Simons, Oliver, and Carver was that
Whitworth was not only denied membership in Local 150, but was discharged by the
Respondent Employer on the morning of October 13, 1961, under circumstances
that will be discussed and disposed of below.
On the morning of October 13, 1961, Simons called Carver about replacing
Whitworth on the drier with one Andrew Lee Charters, who was due to be laid off
the road gang on that date. In the course of this conversation he told Carver that
Charters had been in the employ of the Company for 2 or 3 weeks, and that before
that had worked for an asphalt company in East Chicago, Illinois.
Simons' testimony in this regard is likewise set forth below:
Q. Now, did you on that morning also have a conversation with Mr. Loyd.
Carver?
A. Yes, I did.
Q. And how did that conversation come about?
A. A gentleman by the name of Earl Kulik, also employed by our company,
advised that a Mr. Lee Charters, who had been our employee for a period of
maybe two or three weeks, would be laid off that morning and asked me to
arrange for his check to be available for him. And also made mention to the
fact he had been quite well pleased with Mr. Charters' work, he had done for
us on various construction sites. And had had conversations with him to the
effect that he had worked for Hartly's Inc.-I believe is the trade name of
the company-who was engaged in a similar business in the city of East Chicago.
Q. Similar business to Walsh and Kelly?
A. Right. And felt that due to his having had experience there, that he
would be a good man to take over the operation of the drier. I, in turn, called
Mr. Carver and reported that to him. He also knew that Mr. Charters had
worked for Hartly's for a period of four or five or six years, and agreed with
our thinking. And it was decided at that time that Mr. Charters would start
Monday morning on the drier.
Q. Is Mr. Charters a member of Local 150?
A. Yes. [Emphasis supplied.]
Simons acceded to Carver's request that he "... put the laborers where the la-
borers belong and put the operating engineers where the operating engineers belong
and stop laying them off." As a result he took Whitworth off the job, and replaced
him with Andrew Lee Charters, a member of Local 150, who has been referred to
immediately above in the excerpt from Simons' testimony in this regard. As the
Trial Examiner sees it the foregoing is the only reasonable interpretation that may
be had of Carver's instructions to Simons that Whitworth be taken off the drier and
put back on the "labor gang" where he belonged and to quit laying off men like
Charters, who are "operating engineers," and put them on the "operating engineers'"
jobs such as operating the drier," 20 for the simple reason that this is exactly what
0 Quotes from Carver's testimony which has been set forth above
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
happened on the morning of October 13, 1961. What transpired at the time Whit-
worth was laid off follows below:
At this point the Trial Examiner feels compelled to refer to an incident that oc-
curred at the hearing herein. He has reference to the fact that counsel for the
Respondent Union objected to each and every question that the General Counsel
elicited from his witnesses that involved conversations between themselves, such as
in the interrogation of Whitworth regarding his conversations with Simons and
-Johnson at times material herein, including the testimony that led up to his discharge
on October 13, 1961. His grounds for lodging his objections were that since they
concerned conversations made outside the presence of his client, the Respondent
Union herein, then they were pure hearsay and inadmissible in evidence. The
Trial Examiner overruled his objections and permitted counsel for the General
Counsel to interrogate the witnesses in question along the lines mentioned above.
The Trial Examiner's reasoning in this regard follows below.
In the first place Simons and Johnson were in the hearing room at all times ma-
terial herein. They were within plain view of counsel for the Respondent Union.
The record shows that he not only personally knew who they were, but agents of
his client, the Respondent Union herein who had been doing business with Simons
and Johnson for years, were likewise present. Consequently, he had the opportunity
to cross-examine Whitworth, which he did, most extensively as the record clearly
shows. As to Simons and Johnson, both were called and testified at the hearing
herein as witnesses for the General Counsel in support of his case-in-chief. They
too were subjected to extensive cross-examination by counsel for the Respondent
Union, at which time he reiterated, before interrogating them, his original objection
to their testimony on the grounds of "hearsay." Nevertheless, as indicated, he in-
terrogated them as be saw fit, reserving on the record, of course, his original
objection.
The Trial Examiner's ruling regarding the admissibility of the above testimony
was predicated on the following.
As he sees it the primary reason for the hearsay rule is to protect a party from
utterances by a witness in situations where there is no opportunity to test the trust-
worthiness of his testimony. However, in situations where the utterances of the
witness is itself part of the details of the issues raised by the pleadings, such as we
are faced with here, then such utterances may be introduced for that purpose, which
is precisely the reason that the Trial Examiner permitted the testimony of Whitworth
to stand, and overruled the objections of counsel for the Respondent Union in this
regard 21 Moreover, in addition to counsel's opportunity to cross-examine Whit-
worth, Simons, and Johnson, his own witness Carver was interrogated regarding
the same matters that his objections were directed to in his original objections to
utterances of Whitworth regarding statements of Simons and Johnson that went
right to the heart of the issues herein In the circumstances, the Trial Examiner is
convinced that the objections of counsel for the Respondent Union regarding the
above were not only properly overruled at the time they were made, but upon the
record as a whole are now moot in view of the testimony of Simons, Johnson, and
Carver on both direct and cross-examination.
As pointed out above, Whitworth was taken off the drier the next morning, Oc-
tober 13, 1961, and was replaced by Andrew Lee Charters. Since there were no
laborers jobs available, the layoff was in reality a discharge. In passing, the Trial
Examiner desires to point out that Simons in the course of his testimony at the hear-
ing herein testified that Carver at no time requested that Whitworth be discharged,
but that Carver did tell him in substance to take the laborers off the operating enei-
neers' jobs and put the operating engineers on such jobs in accordance with the
"agreement" between the Respondents. The record is replete with similar phrase-
ology to the point that it would baffle even a Noah Webster to distinguish between
the words "union" and "unit" in the light of the descriptive adjectives used by counsel
in their interrogation of the witnesses. Even so, viewing Carver's instructions to
Simons in the most favorable light they were tantamount to a request to take Whit-
worth off the drier and put Charters on it, because Charters was in the "union" and
Whitworth was not. As the Trial Examiner sees it the most favorable testimony
in the record in support of the General Counsel's position is found in the testimony
of Carver both on direct and cross-examination. For example, his account of his
conversation with Oliver about taking Whitworth into Local 150, the Respondent
herein 22 Here again we have an example of Carver's erroneous conception of
"appropriate unit," and the persons who constitute it. The Act deals with "persons"
a See Wigmore's Code of Evidence, 3d ed, subtitle III, rule 171, par 1767, art I.
22 See supra.
WALSH AND KELLY 1579
not machines . Here again it must be borne in mind that at all times material herein
the Respondent Union was the bargaining agent for the employees who operated
the machines , regardless of their union or nonunion affiliation . Whitworth , a "per-
son," that is a human being, was operating the drier, a machine, and had been for
51/2 years, being so occupied he was at all times material herein an employee within
the meaning of the Act, and as such was an "employee" in the appropriate unit
regardless of his union or nonunion affiliation.
A resume of what actually transpired when Whitworth was discharged follows
below . According to Whitworth he was discharged by his foreman , Marlin Johnson,
around 11 a.m . on,October 13, 1961. An excerpt from his testimony in this regard
follows:
TRIAL EXAMINER: I want to ask the witness a question . In your earlier testi-
mony, you testified as to what happened at the time you were discharged. Will
you please relate that again, Mr. Witness?
The WITNESS: In the office or out at the plant or both?
TRIAL EXAMINER: When you were fired, who fired you?
The WITNESS: All right. I went to work in the morning of October 12.
Marlin Johnson come out about 11:00 o'clock and told me that I was being
laid off that night at 3:30. And I asked him why. And he said the union was
laying me off And I was being replaced by a man who had been working
there. But he didn ' t know his name. He said it was a common name. "But,"
he said, "you can get the name off of Bob in the office." And he went on and
said-wait a minute now. And I asked him if there was any other work for
me. And he said, "I don 't know where it would be."
According to the credible testimony of Marlin Johnson, he had had a conversation
with Simons on the day before, around 4:30 p.m., at which time Simons told him
about his conversation with Oliver, and that Whitworth was to be taken into the
"Union" the next morning. For reasons which have been set forth above, Oliver's
plan to take Whitworth into the "Union," which he had told Simons about the night
before, went askew after he talked to Carver later that same evening. According
to the credible testimony of Marlin Johnson, Simons told him the next morning
that the plan to take Whitworth into the "Union" had been "changed." Since
Johnson's testimony in this regard is also concerned with the actual discharge of
Whitworth on the morning of October 13, 1961, the Trial Examiner feels that the
following excerpt from his testimony in this regard should also be inserted herein
below:
Q. Directing your attention to the following day, the morning of October 13,
did you have another conversation with Mr. Simons with respect to Earl
Whitworth 9
A. I did.
Q. Will you please relate that conversation?
Mr. MAMET: Same objection.
TRIAL EXAMINER: You have an objection to the entire line of questioning?
Mr. MAMET: Just to the conversations outside of our presence , that's all I
am objecting to.
TRIAL EXAMINER: I understand. Answer the question.
The WITNESS: About a quarter of seven of the next morning, Bob came to
me and told me that that had been changed
Q. (By Mr. SHERIN) What had been changed9
A. The fellow coming out and taking Earl into the Operators. There would
be a man out to replace him on the drier.
Q. Did he say anything to you about or with respect to what you should
say to Earl Whitworth or you should see Earl Whitworth?
A. He told me I could tell him he would be replaced that day
Q. Did you later talk to Earl Whitworth on that day?
A. I did.
Q Approximately what time was that?
A. 11:00 o'clock.
Q. What did you say to Earl Whitworth and what did Earl say to you?
A. I asked Earl if he had been down to the Union the day before, and he
said he had. "And, well, I guess you know they were supposed to come out
and take you in the Engineers today." And he said, "Yes." I said, "That's
been changed. You are going to be replaced at the drier."
Q. Did Earl Whitworth say. anything to that? ,
A. Yes. He wanted to know where I got my information.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you tell him?
A. Yes, who told me. And I said, "You have to talk to Bob Simons if you
want to know anything more about who to talk to."
As indicated above there were no jobs available in the laborers unit and, as a
result of all the foregoing, Whitworth was to all intents and purposes discharged by
the Respondent Employer on the morning of October 13, 1961, in accordance with
the instructions of Carver, the business agent for Local 150.
In passing, the Trial Examiner desires to point out that there is no "seniority"
provision in the "Agreement" between the Respondents herein. Consequently, an
employee with 51/2 years' service on a particular job could be replaced without
notice of any kind by another with approximately 3 weeks' service.
The record also shows that both Simons and Johnson considered Whitworth a good
worker, and that he was and had been doing a good job on the drier at all times
material herein.
CONCLUSION
Upon all of the foregoing the Trial Examiner concludes and finds that Earl Whit-
worth was discharged by the Respondent Company herein on October 13, 1961, at
the request of and because of his lack of membership in the Respondent Union. His
reasoning in this regard and his conclusions and findings as to the Respondent
Company and the role of the Respondent Union in the Whitworth affair follow
below.
As indicated above the instant case presents an unusual problem by reason of the
fact that the Trial Examiner granted a summary judgment on the pleadings against
the Respondent Employer herein at the onset of the hearing for reasons which have
been thoroughly discussed and disposed of above. For this reason the Trial Ex-
aminer sees no point in reiterating the factual circumstances in this regard in this
section of his report. Suffice it to say at this time that the issues as to the Respondent
Employer will be disposed of below in the section of this report entitled "The
Remedy."
Now as to the Respondent Union, and the Trial Examiner's concluding findings
as to it. As he sees it be has already indicated above his ultimate determination
as to its role in the discharge of Earl Whitworth by the Respondent Employer on
Friday, October 13, 1961.
Upon all of the foregoing and the record considered as a whole, the Trial
Examiner is convinced and finds that the Respondent Union, acting through its
agents, Roy Oliver and Lloyd Carver, particularly the latter, attempted to cause and
did in fact cause Respondent Company to discharge Earl Whitworth because of his
lack of membership in Respondent Union; and by the acts described and set forth
herein above did engage in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(1)(A) and (2) of the Act. His sum-
mation and reasoning behind the foregoing follows below.
In the first place Earl Whitworth was employed in the appropriate unit not only
at times material herein, but for at least 51/2 years before he was discharged on
October 13, 1961. The record clearly shows that he was the regular operator of
the drier, and was not, by no stretch of the imagination, a "temporary employee." 23
The Respondent Union, as the recognized bargaining agent for the employees in
the unit, was under the same obligation to consider his problems as regards wages,
hours, and other conditions of employment as it was toward its own members. The
record shows beyond question that there was no "closed shop," maintenance of
membership in the Union, or agency shop agreement between the Respondents.
Moreover, we are concerned with an issue herein that arose and occurred in the
State of Indiana, which has a statute known as the "Indiana right-to-work law," 24
which renders void and unenforceable any agreement conditioning employment upon
union membership. As the Trial Examiner sees it this particular statute applies
to both written and oral agreements and/or "understandings" or "yard-sticks." 25
In such circumstances it was no concern of the Respondent Union herein whether
Whitworth belonged to Local 81 of the Laborers Union, Local 150 of the Respond-
ent Union, or any other labor organization, as long as he was employed in the appro-
priate unit, which the record clearly shows he was, not only at times material herein,
but had been for 51/ years.
x' See the Trial Examiner's comments on the "laxity" of the parties in regard to
Whitworth's employment status, supra
24 Burns Ind., Statutes Ann. sec 40-2703 (P.C.S. Acts of 1957, ch. 19, sec. 3).
25 An agency shop agreement is valid in the State of Indiana under Meade Electric Co.
v. Hagbery, 129 Ind . App 631 , 159 N.E. 2d. 408, decided June 19, 1959.
WALSH AND KELLY 1581
As the Trial Examiner interprets Carver's testimony he was only concerned with
the welfare of members of Local 150. This is evidenced by his reference to the
"operating engineers unit" throughout his testimony at the hearing herein 2e From
all' of his testimony the Trial Examiner concludes and finds that what he had in
mind at all times material herein was "a members only" agreement with the Re-
spondent Employer. The Board since the early days of the Wagner Act has con-
sistently looked askance at such arrangements.27
The Trial Examiner, of course, recognizes the position that Carver was in as the
business agent for the Respondent Union insofar as looking after the welfare and
needs of the employees of the Respondent Company who were members of Local
150, nevertheless his zeal and obligation in this regard is no defense or excuse for
his conduct in the "Whitworth deal," either under the Act or the laws of the State
of Indiana.
One of the major defenses of the Respondent Union to its role in the "Whitworth
deal" is that it had no knowledge that he was regularly employed in the appropriate
unit at the time Carver requested that he be replaced by a "member of the operating
engineers unit" that was about to be laid off the "road-gang," that is Andrew Lee
Charters. A further contention is that it considered Whitworth a "temporary em-
ployee" and that as such he should be put back doing laborers' work in the "laborers'
unit" and that the work he was doing on the drier should be given to a member of
the "operating engineers unit" in accordance with the "yard-stick" agreement between
the parties. Though the Trial Examiner has referred to and to some extent discussed
this position of the Respondent Union hereinabove, nevertheless he feels that he
should dispose of the issue here and now in this section of the report. As he sees
it time is not of the essence as a defense to the Respondent Union's conduct. As he
sees it the mere fact that the Respondent Union did not learn of Whitworth's regular
assignments to the drier until the night before he was discharged, is no defense to
its conduct in view of the fact that in the "agreement" between the parties there is
no "seniority" provision, and since the Employer could hire "whoever" it pleased,
then it follows, as the Trial Examiner sees it, that even though Whitworth had only
been placed on the job the day before he was fired or a year before, the Respondent
Union had no legal right to request his discharge. And it is so found.
We now come to what the Trial Examiner considers the major defense of the
Respondent Union. He has reference to the contention of its counsel both at the
hearing herein and in his brief, that the real reason that the Respondent Employer
discharged Whitworth was because he had filed charges against it on September 25,
1961, in violation of Section 8(a) (4) of the Act. As indicated above this contention
.of the Respondent Union has perturbed the Trial Examiner quite a bit. At first
blush he was inclined to find some merit in its contention in this regard. However,
after long and careful consideration in the light of the record considered as a whole
he rejects it for the following reason. As he sees it the answer to this troublesome
question lies in the uncontradicted, and undenied testimony of Simons as regards his
conversation 'with Carver in re the "Whitworth deal," which has been inserted herein
and emphasized above. It is to be noted that Simons in his conversation with Carver
-specifically raised this very issue on the night before Whitworth was discharged.
In the circumstances the Trial Examiner is convinced that Simons was not only
gravely concerned with the consequences that might flow from acquiescing to Carver's
request to discharge Whitworth, but realized that by so so doing he might jeopardize
the Respondent Employer's defense to the charges filed by Whitworth on Septem-
ber 25, 1961, which were then pending before the Board. It was only after Carver
had assured him that his fears in this regard were groundless, that he finally agreed
to remove Whitworth from his job on the drier and to replace him with Andrew Lee
Charters, a member of the "operating engineers unit." In the circumstances and
upon the record as a whole the Trial Examiner is convinced and finds that this con-
tention of the Respondent Union is likewise without merit, and that the fact that
Whitworth had filed charges against the Respondent Employer herein on Septem-
ber 25, 1961, was not a motivating factor in its discharge of Whitworth on October 13,
1961.
Upon all of the foregoing, and upon the record considered as a whole, the Trial
Examiner concludes and finds that by the conduct described above the Respondent
se That Simons, the Respondent Employer's office manager, knew what Carver was talk-
ing about when he discussed the placing of Charters on the drier, is found in the follow-
ing excerpt from his testimony at pages 274 and 275, "that we ordinarily refer to the
unit as union rather than as a unit"
27 See Psttsburgh Plate Glass Company, 111 NLRB 1210, 1212; A 0 Smith Corpora-
.tion, Kankakee Works, 119 NLRB 621, 622.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union caused Walsh and Kelly, the Respondent Employer herein, to discriminately
discharge Earl Whitworth on October 13, 1961, and that by such conduct did engage
in' activities violative of Section 8(b) (2), and (1) (A) of the Act.
From all of the above the Trial Examiner is likewise convinced and finds that the
only foreseeable consequence of Carver's request to Simons that he remove Whit-
worth from his job on the drier and put Andrew Lee Charters in his place was that
it would interfere with the rights of the Respondent Employer's employees to exercise
the rights guaranteed them in Section 7 of the Act. By that the Trial Examiner
has reference to their right to either join a labor organization or to refrain from any
or all of such activities. In the Trial Examiner's opinion, Carver's request was
tantamount to putting all of the employees on notice that it would be to their
advantage to join the Respondent Union at once, or else the same thing might happen
to them that happened to Whitworth, so do not dilly-dally around about it like he
did, get in touch with one of our organizers or business agents at once and sign up 28
Such conduct is, of course, violative of,Seetion 8(b)(1).(A) of the Act, and as
indicated above, it is so found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging in
unfair labor practices which are violative of the Act, it will be recommended that they
cease and desist therefrom and take affirmative action necessary to effectuate the
policies of the Act.
No finding has been made that the "agreement" between the Respondents herein
is illegal in any respect. However, with respect to the discrimination against Earl
Whitworth, the "agreement" became an issue and the Trial Examiner has found
above that the Respondent Union's interpretation of the phrase "appropriate unit,"
to mean "member of Operating Engineers unit" and the acquiescence of the Re-
spondent Employer herein to such an interpretation was unlawful, and consequently
no defense to the Respondents. In the circumstances, the Trial Examiner will not
recommend that the Respondents cease giving effect to the "agreement" and/or
"yard stick," but he will recommend that the Respondent Company cease and desist
from encouraging membership in the Union by discharging or transferring employees
generally, and in particular those who are employed in the "appropriate unit." or
by refusing to hire applicants for employment, because they are not members of the
Respondent Union, or because they have not been hired through, or have not ob-
tained approval clearance, or a job referral from the Respondent Union, or by dis-
criminating against them in any other manner.
It will be recommended that the Respondents jointly and severally make whole
Earl Whitworth for any loss of earnings he suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that which he would
normally have earned from the date of the discrimination against him to the date of
the offer of reinstatement, less net earnings during such period, with backpay com-
puted on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. It will be further recommended that the Respondent
Company pay to Earl Whitworth the hourly differential between what it discrimina-
torily paid him because he was a member of Local 81, Hod Carriers, and Building
Laborers Union, AFL-CIO, and not of the Respondent Union, $3.10 per hour, and
the rate of pay he should have received as an employee within the "appropriate unit,"
$3.80 per hour, from July 2, 1961, to the date of his discharge on October 13, 1961,
and thereafter in accordance with the recommendation set forth herein immediately
above. It will also be recommended that the Respondent Company offer Earl Whit-
worth immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other rights and privileges, and that
the Respondent Union notify the Company without regard to Whitworth's member-
ship in, or referral or clearance by. the Union. It will be further recommended that
Respondent Company preserve and, upon request, make available to the Board, all
='B The Trial Examiner realizes, of course, that the above language is pure fiction ne%eI
theless that is the way the testimony in the record as regards the " Whitwoi th deal"
impressed him.
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1583
payroll records , social security payment records , timecards , personnel records and
reports, and all other records necessary and useful to determine the amount of back-
pay, due and the rights ' of reinstatement under the terms of this recommendation.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers , Local Union # 150, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
2. By discriminating against Earl Whitworth in regard to his hire and tenure of
employment , thereby encouraging membership in the above-named labor organiza-
tion, the Respondent Company has engaged in and is engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By attempting to cause and causing the Respondent Company to discriminate
against Earl Whitworth in violation of Section 8(a)(3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent Union has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Metropolitan District Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and McCloskey and Company . Case No. 4-C13-716.
July 23,1962
DECISION AND ORDER
On March 16, 1962, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, McCloskey, the General Counsel, the Respondent, and
one of the Intervenors i filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
The General Building Contractors Association, Inc, herein called the GBCA, an em-
plover association whose members are located in the greater Philadelphia area, was
allowed to intervene in the pioceedings herein. It was the GBCA that negotiated the
contract involved herein The GBCA filed exceptions
The National Contractors Association was also allowed to intervene. It submitted a,-
beef in support of the Trial Examiner's finding of a violation of Section 8(b)(3).
137 NLRB No. 176.