Yuba Consolidated Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1962

136 N.L.R.B. 683 (N.L.R.B. 1962)

YUBA CONSOLIDATED INDUSTRIES, INC. 683
that the Respondent preserve and upon request, make available to the Board or its
agents, for examination and copying , all payroll records, social security payment
records, timecards , personnel records and reports, and all other records necessary
to analyze the amounts of backpay and the rights to reinstatement under the terms
of these Recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shal recommend further that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing
Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All production and maintenance employees at the Respondent 's Wichita plant,
excluding office clerical employees , salesmen , servicemen , installation men, guards,
watchmen , and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
3. On September 15, 1960, the Union was, and at all times thereafter has been,
the exclusive representative of all employees in such unit for the purposes of col-
lective bargaining.
4. By refusing to bargain collectively , by discouraging membership in a labor
organization through discrimination in employment, and by interfering with, re-
straining, and coercing employees in the exercise of their rights under the Act, the
Respondent has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a).(5), (3 ), and (1 ) and Section 2(6) and (7).
5. The allegations of the complaint that the Respondent invalidly discharged
Floyd Ward have not been sustained.
[Recommendations omitted from publication.]
Yuba Consolidated Industries , Inc. and G. F. Miller
International Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO, Local Union No. 321 [Yuba Consoli-
dated Industries, Inc.] and G. F. Miller
Meehleis Steel Co. and G . F. Miller
International Association of Bridge , Structural , and Ornamen-
tal Iron Workers, AFL-CIO, Local Union No. 321 [Meehleis
Steel Co.] and G . F. Miller. Cases Nos. 26-CA-1044-1, 26-CB-
154-1, 26-CA-1046, and 26-CB-155. March 29, 1962
DECISION AND ORDER
On November 20, 1961, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the consolidated complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
136 NLRB No. 60.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions And brief and the entire record in these
cases, and hereby adopts the findings,' conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent with the
following :
The consolidated complaint alleges that Yuba Consolidated In-
dustries, Inc. (hereinafter referred to as Yuba), and Meehleis Steel
Co. (hereinafter referred to as Meehleis), both maintained a hiring
arrangement or practice with International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, Local Union
No. 321 (hereinafter referred to as Union or Local 321), pursuant to
which Local 321 was to be the sole source of applicants for welders'
jobs, and that employment was to be conditioned upon clearance or
referral based upon membership in the Union. The complaint also
alleges that, pursuant to this hiring arrangement or practice, Local
321 refused to refer, and Yuba and Meehleis refused to employ,
G. F. Miller because Miller was not a member of the Union.
The Trial Examiner found, inter alia, as to both Yuba and Meehleis,
that "(1) No illegal `arrangement' existed between the Respondents;
(2) No illegal `practice' was maintained among the Respondents;
(3) Respondent Union was not the `sole- source' of welders for Re-
spondent Companies"; and (4) Miller was not discriminated against
in violation of Section 8(a) (1) and (3) and 8(b) (1) (A) and (2) of
the Act.
1. As to Cases Nos. 26-CA-1044-1 and 26-CB-154-1 involving Re-
spondents Yuba and Local 321, the record indicates that sometime in
January 1961, officials of Yuba met with officials of the local building
trades unions for the purpose of discussing the supply of labor in the
Little Rock area. As a result of these meetings, Yuba and the Union
agreed that the latter would furnish qualified workmen to meet Yuba's
requirements for steel and iron work, including welding. The con-
struction work at these missile sites requires a special and highly
skilled type of welding called low-hydrogen welding. In order to
qualify for this type of welding, an applicant must pass a test designed
to meet certain standards set by the U.S. Army Corps of Engineers.
This test was administered by Yuba's welding superintendent.
W. W. Snow, Yuba's office manager, testified that he started work-
ing for Yuba on February 1, 1961. It was his "understanding" that
1 The Respondent Companies admitted that during the 12-month period preceding the
hearing, each of them received goods and materials valued in excess of $50,000 directly
from points outside the State of Arkansas, and that they were engaged in commerce.
Accordingly , we find , as did the Trial Examiner, that Respondent Companies are engaged
in commerce within the meaning of the Act, and that the Board ' s assertion of jurisdiction
is warranted.
YUBA CONSOLIDATED INDUSTRIES, INC. 685
Yuba's work was being done by the Iron Workers Union, and that all
applicants had to be told to contact Local 321 in Little Rock. When
applicants came to the jobsite, Snow told them to contact the Union
.and Yuba called the Union. for'men as it needed them. He testified
further that until April 1, 1961, all but about 12 of the men hired by
Yuba were dispatched by the Union. These 12 men were specifically
requested by Yuba as they had all worked for it in the past, and 10 of
them were hired in supervisory positions.
L. W. Delhi, Yuba's project manager, testified that early in Feb-
nary, when low-hydrogen welders were first required, Yuba requested
the Union to allow the Company to give applicants the welding test
before sending them to the Union for clearance. The Union refused
to agree to this procedure and stated that all applicants should first
be'sent to the Union. He, further, testified that, until„ sometime in
March 1961, applicants who came to Yuba were instructed to go to the
Iron Workers Union for clearance. After that time, however, the
Company tested and hired welders without clearing them through the
Union.
J. W. Sanders, business agent of Local 321, testified that until the
latter part of April 1961, the Union did not refer anyone to the job
who was not a member of the Iron Workers Union,2 except for those
specifically requested by the Employer, all of whom were supervisory
personnel.
The foregoing facts clearly establish that until at least sometime
in March, Yuba sent all applicants to the Union for clearance, and
until at least sometime in April, the Union did not refer anyone who
was not a union member. We find on those facts, contrary to the Trial
Examiner, that Yuba and the Union maintained a hiring arrangement
oripra'otice,requiringmembership ,in the Union. as a condition,,of em-
ployment in violation of "Section 8(a) (1) and (3) and 8(b) (1) (A)
and (2 ) of the Act.'
As to the alleged discrimination against Miller, it appears that
Miller was an experienced welder, having earned his living at that
trade since 1942. On February 20, 1961, Miller went to the union hall
and told Sanders he wanted to join the Union. Sanders told him that
the Union was not admitting any additional members at that time
because many of the union members were unemployed, and that Miller
would have to meet with the executive board. Miller met with the
executive board on February 24, 1961, answered some questions about
2 As discussed infra, on March 1, 1961 , when Miller asked to be referred by the Union,
Sanders told him that he had to send all of his men out before he could refer anyone
else, and on April 26, 1961, when Miller asked Gray, Yuba's welding superintendent, to
give him the welding test, Gray refused because Miller was not a union member
s Morrison-Knudson Company, Inc., 122 NLRB 1147, 1149; Grove Shepherd Wtilson f
Kruge, Inc., et at, 109 NLRB 209, 216.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his qualifications and previous experience, and was told to come back
again in about 6 weeks. On March 1, 1961, Miller was in the union
hall when he learned from a group of men who were going out to the
job that 50 welders were needed at Yuba. He asked Sanders why he
could not send him out on the job, and Sanders told him that he had
to send all of his men out before he could send anyone else.
Subsequently, Miller went to Shreveport, Louisiana, in an unsuccess-
ful attempt to "buy a book" in another local of the Iron Workers
Union. On March 14, Miller spoke with Sanders and offered him
$160 as the initiation fee for a union book, but Sanders told him that
the "book" was closed. Miller continued to go to the union hall but
was never referred by the Union."
On March 22 and April 17, 19, and 24, 1961, Miller went to Yuba's
jobsite seeking employment but was unsuccessful. On April 26, 1961,
Miller again returned to the jobsite and asked the welding superin-
tendent, Gray, to give him the welding test. Gray replied that he
could not give Miller the test because Miller did not belong to the
Union. The same events occurred again on May 1, 1961. Miller tes-
tified that on this latter occasion, he noticed that other men, who
possessed referral slips, were being assigned to take the welding test.
He then went back to Gray and told him he was tired "of this running
around," after which Gray agreed to give Miller the welding test.
After the other men had finished the test, Gray gave them a badge and
-helmet and sent them out to work.' When Miller finished his test; he
asked Gray why he could not send him out on the job, to which Gray
replied that it was because Miller was not a union member. On the
following day, May 2, Miller went back to Yuba and was told by Gray
that he had failed the test. On June 7, Miller went back to Yuba and
was able to talk Gray into giving him a second test. On this occasion,
Gray told Miller that even if he passed the test, he doubted that the
Union would let him stay on the job. Miller returned the following
day and was again told that he had failed the welding test.
In our opinion, the above evidence clearly indicates that Miller was
denied clearance or referral by the Union, and was initially denied
the opportunity to take the welding test by Yuba, solely because he
was not a member of the Union. Accordingly, on the basis of the
'The Trial Examiner found that Miller "made no application to join the Union nor
did he request that his name be put on a work roster" Contrary to the Trial Examiner.
it is quite clear that Miller requested membership in the Union on several occasions-
As to Miller's failure to make a specific request that he be placed on the work roster, it
is clear that Miller expressly requested that he be referred to a job, thereby indicating
that he was seeking employment Moreover, insofar as the Tiial Examiner considered
placement on the work roster as being material , Sanders admitted that lie never consulted
the work roster when referring men to jobs.
5 Snow, Yuba 's office manager, testified that it takes 24 hours before the results of the
test are available , and that when men are needed , applicants who have taken the welding
test are sent out on the job to do other work until the results of the test are known
YUBA CONSOLIDATED INDUSTRIES, INC. 687
foregoing conduct, we find that Yuba and the Union violated Section
8(a) (1) and (3) and Section 8(b) (1) (A) and (2) of the Act.'
2. As to Cases Nos. 26-CA-1046 and 26-CB-155, involving Respond-
ents Meehleis and Local 321, it appears that representatives of Meehleis
also attended the January 1961 meeting with the local trade union
officials and also agreed to have the Union furnish it with qualified
workmen.
S. L. Rogers, project manager for Meehleis at its Searcy, Arkansas,
missile site, testified that he called the Union for men on various oc-
casions, but that he also hired men at the jobsite without sending them
to the Union for clearance. Rogers further testified that he did not
ask the applicants if they were union members, and he hired both
union and nonunion men.
The only evidence in the record which tends to rebut Rogers' testi-
mony as to Meehleis' hiring policy, is that of Miller. Miller testified
that he first went to Meehleis on March 22, 1961, and spoke to an un-
identified man who was the only one in the office, about a welding job.
This unidentified individual told him that he would have to be referred
by the Union, and that he should go see Sanders at the union hall which
opened at 7 a.m. Miller asked this unidentified individual for a refer-
ral but the man said he couldn't give him one. He returned to Meeh-
leis on April 17, May 18 and 26, and June 5, 23, and 30, and was told
on each occasion that there were no jobs available.
In our opinion, the foregoing facts fall short of establishing that
Meehleis pursued a policy of conditioning employment upon prior
clearance or referral from Local 321. The General Counsel, at no
time, sought to establish the identity of the individual to whom Miller
spoke on March 22, 1961, or that this individual was in any way con-
nected with Meehleis in a capacity which would be binding on
Meehleis.' Accordingly, we find that the General Counsel failed to
establish the existence of an unlawful hiring arrangement or practice
between Meehleis and Local 321, or that Miller was refused employ-
ment by Meehleis by reason of his nonmembership in the Union. Ac-
cordingly, we shall dismiss those allegations of the consolidated com-
plaint relating to Cases Nos. 26-CA-1046 and 26-CB-155.
THE REMEDY
Having found that by the aforementioned conduct, Respondent
Yuba and Local 321 have violated Section 8(a) (1) and (3) and Sec-
e International Brotherhood of Electrical Workers , Local Union 340, AFL-CIO (Walsh
Construction Company ), 131 NLRB 260 ; Grove Shepherd Wilson & Hruge, Inc, et al.,
supra, footnote 3, at 215; Mohawk Valley and Vicinity District Council, United Brother-
hood of Carpenters and Joiners of America , at al., 109 NLRB 522, 523; Joe K. Miller,
d/b/a KM. & M. Construction Co., 120 NLRB 1062, 1077.
7 See Section 2(2) of the Act.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(b) (1) (A) and (2) of the Act, we shall order them to cease
and desist from engaging in such conduct in the future and to affirma-
tively take such action as will dissipate the effects of their unfair labor
practices. Thus, on the basis of the violation found in Case No.
26-CA-1044, we shall order Respondent Yuba to cease and desist from
encouraging membership in Local 321, or any other labor organiza-
tion of its employees, by maintaining, enforcing, or otherwise giving
effect to an arrangement or practice whereby it directs all applicants
for employment to obtain clearance or referral from Local 321, or any
other labor organization, under circumstances where such referral or
clearance is withheld unless said applicants are members of the Union.
Affirmatively, we shall order Yuba, jointly and severally with the
Union, to reimburse Miller for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him, by paying
Miller a sum of money equal to the amount that he would have earned
as wages (1) from the time he was denied referral by the Union,
March 1, 1961, to the time that he was given the welding test, May 1,
1961; (2) from the time he completed the welding test on May 1, 1961,
to the time that the results of the test were made known to him on
May 2,1961.
We have ordered backpay for Miller from March 1, 1961, the date
the union business agent refused to refer him to Yuba, for the reason
that this was the initial instance of discrimination against Miller, pur-
suant to the unlawful hiring arrangement between Yuba and the
Union. In our opinion, the fact that Miller subsequently failed to
qualify for a welder's job does not preclude us from ordering backpay
for him, as his failure to pass the test in May does not establish that
he would have failed in March, had the Union referred him at that
time. Parties who operate an unlawful hiring arrangement or prac-
tice do so at their peril, and cannot expect the Board to speculate as
to what might have happened absent their unlawful conduct. More-
over, this subsequent development cannot alter the fact that Miller
was initially denied referral, not because he was not qualified, but
because he was not a union member. We have also ordered backpay
for Miller from May 1 to May 2, 1961, because the evidence (supra)
clearly shows that but for his nonmembership, Miller would have been
sent out to work after he completed the welding test. In view of the
fact that the record is inadequate to enable us to determine whether
other work was available on June 7, 1961, or whether Miller would
have been sent out to the job after his second welding test on that date
but for his lack of union membership, we leave the determination of
that issue for the compliance stage of this proceeding.
The amount of backpay due shall be computed according to Board
policy set forth in F. W. Woolworth Company, 90 NLRB 289. Pay-
YUBA CONSOLIDATED INDUSTRIES, INC. 689
roll and other records in the possession of Respondent Yuba are to be
made available to the Board or its agents to assist in such computation.
We shall also order Respondent Yuba to post notices to its employees
informing them of the provisions of this remedial order.
On the basis of the violation found in Case No. 26-CB-154, we
shall order the Respondent, Local 321, to cease and desist from caus-
ing or attempting to cause Respondent Yuba or any other employer
to discriminate against any of its applicants or employees in viola-
tion of Section 8(a) (3) of the Act, and from maintaining, enforcing,
or otherwise giving effect to an arrangement or practice whereby all
applicants for employment are required to be referred by, or to ob-
tain clearance from, the Union as a condition of employment where
it appears that such referral or clearance is given only to union mem-
bers. Affirmatively, we shall order the Union, jointly and severally
with Yuba, to make Miller whole for any loss of pay suffered as a
result of Respondent Yuba's discrimination against him, in the man-
ner set forth, and consistent with, the immediately preceding section
of this decision entitled "The Remedy." We shall also order Respond-
ent, Local 321, to notify Miller and Yuba, in writing, that it with-
draws any objection to Miller's employment, and to post notices to
its members informing them of the provisions of this remedial order.
As Arkansas has a "right-to-work" law, we shall delete from the
Order herein, the proviso, "except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as amended."
The Board, upon the basis of the foregoing facts and the entire
record, makes the following :
CONCLIIsIONs OF LAW
1. Yuba Consolidated Industries, Inc., and Meehleis Steel Co., are
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, Local Union No. 321, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the employment of G. F. Miller
by refusing to hire him without clearance or referral, based upon
membership in International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, Local Union No. 321, Re-
spondent Yuba has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) and (3) of the Act.
4. By causing and attempting to cause Respondent Yuba to refuse
to hire G. F. Miller because he had not obtained clearance or referral
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based upon membership in the Union, Local 321 has engaged in and is
engaging in unfair labor practices within the meaning of Section
8(b) (1) (A) and (2) of the Act.
5. By maintaining, enforcing, or otherwise giving effect to a hir-
ing arrangement or practice with Local 321 whereby employment is
conditioned on clearance or referral based upon membership in Local
321, Respondent Yuba has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the Act.
6. By maintaining, enforcing, or otherwise giving effect to a hiring
arrangement or practice with Yuba whereby employment is condi-
tioned on clearance or referral based upon membership in Local 321,
Respondent Local 321 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (1) (A) and (2) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
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 :
A. That Respondent, Yuba Consolidated Industries, Inc., Conway,
Arkansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local
Union No. 321, or any other labor organization of its employees, by
refusing to employ or in any other manner discriminating against any
employees or applicant for employment in regard to hire or tenure of
employment or any term or condition of employment.
(b) Maintaining, enforcing, or otherwise giving effect to a hiring
arrangement or practice under which employment is conditioned
upon clearance or referral based upon membership in the aforemen-
tioned Union.
(c) In any other manner interfering with, restraining, or coercing
its employees or applicants for employment in the exercise of the
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 International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, Local Union
No. 321, make whole G. F. Miller for any loss of pay he may have
suffered by reason of the discrimination against him in the manner
set forth in the section of our decision entitled "The Remedy."
YUBA CONSOLIDATED INDUSTRIES, INC. 691
(b) 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 analyze the amount of backpay due
under the terms of this Order.
(c) Post at its construction site at Conway, Arkansas, copies of the
notice attached hereto marked "Appendix A." 8 Copies of said notice,
to be furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly signed by the Company's representative, be
posted immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Post at the same place and under the same conditions as set
forth in (c) above, as soon as they are forwarded by the Regional
Director, copies of Local 321's notice attached hereto marked "Ap-
pendix B."
(e) Mail to the Regional Director for the Twenty-sixth Region
signed copies of the notice attached hereto marked "Appendix A," for
posting at Local 31's business office and hall in Little Rock, Arkansas.
(f) Notify the Regional Director for the Twenty-sixth Region,
in writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
B. That Respondent, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, Local Union No.
321, Little Rock, Arkansas, its officers, agents, representatives, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining, enforcing, or otherwise giving effect to a hiring
arrangement or practice with Yuba Consolidated Industries, Inc., un-
der which employment is conditioned on clearance or referral based
upon membership in the Union.
(b) Causing or attempting to cause Yuba to discriminate against
employees or applicants for employment in violation of Section
8 (a) (3) of the Act, as amended.
(c) In any other manner restraining or coercing employees or ap-
plicants for employment in the exercise of the 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 :
8In 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."
641795-63-vol. 136-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'(a) 'Jointly and severally with Yuba Consolidated Industries, Inc.,
make'whole G. F. Miller for any loss of pay he*may have suffered as
a result of the discrimination against him in the manner set forth in
the section of the Decision herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all records, reports, worklists,
and other documents necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Notify G. F. Miller and the aforementioned Company, in writ-
ing, that it withdraws its objection to Miller's employment.
(d) Post at its business 'office and,hall in Little Rock, Arkansas,
copies of the notice attached hereto marked "Appendix B." 9 Copies
of said notice, to be furnished by the Regional Director for the Twenty-
sixth Region, shall, after being duly signed by the Union's representa-
tive, be posted by the Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its members and other
persons using Local 321's hiring hall are customarily posted. Reason-
able steps shall be taken by the Union to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Post at the same place and under the same conditions as set
forth in (d) above, as soon as they are forwarded by the Regional
Director, copies of Respondent Company's notice attached hereto
marked "Appendix A."
(f) Mail to the Regional Director for the Twenty-sixth Region,
signed copies of the notice attached hereto marked "Appendix B,"
for posting at Respondent Company's construction site at Conway,
Arkansas.
(g) Notify the Regional Director for the Twenty-sixth Region,
in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith.
9 See footnote 8, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
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 :
WE WILL NOT encourage membership in International Associa-
tion of Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, Local Union No. 321, or any other labor organization of
our employees, by refusing to employ or in any other manner
discriminating against any employee or applicant for employ-
ment in regard to hire or tenure of employment or any term or
condition of employment.
YUBA CONSOLIDATED INDUSTRIES, INC. 693
WE WILL NOT maintain, enforce, or otherwise give effect to any
hiring arrangement or practice under which employment is con-
ditioned upon clearance or referral based upon membership in
the aforementioned Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exer-
cise of their'rights guaranteed in Section 7 of the Act.
WE WILL jointly and severally with International Association,
of Bridge,. Structural and Ornamental Iron Workers, AFL-CIO,
Local Union No. 321, make whole G. F. Miller for any loss of
pay suffered by him as a result of the discrimination against him.
YUBA CONSOLIDATED INDUSTRIES, INC.,
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, 7th Floor, Falls Building, 22 North Front Street, Memphis,
Tennessee, Telephone Number, Jackson 7-5451, if they have any ques-
tion concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS, AND OTHER PERSONS USING THE HIRING
HALL, OF INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS, AFL-CIO , LOCAL UNION No. 321
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:
WE WILL NOT maintain, enforce, or otherwise give effect to any
hiring arrangement or practice with Yuba Consolidated Indus-
tries, Inc., under which employment is conditioned upon clear-
ance or referral based upon membership in our Union.
WE WILL NOT cause or attempt to cause the aforementioned
Company to discriminate against employees or applicants for
employment in violation of Section 8(a) (3) of the Act, as
amended.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guar-
anteed in Section 7 of the Act.
WE WILL, jointly and severally with the aforementioned Com-
pany, make whole G. F. Miller for any loss of pay suffered by him
as a result of the discrimination against him.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify, in writing, Yuba Consolidated Industries, Inc.,
that we have no objection to the hiring or employment of G. F.
Miller.
WE wILL notify, in writing, G. F. Miller that we have with-
drawn any objection to his employment by the aforementioned
Company.
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON
WORKERS , AFL-CIO , LOCAL UNION
No. 321,
Union.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 7th Floor, Falls Building, 22 North Front Street, Memphis,
Tennessee, Telephone Number, Jackson 7-5451, if they have any ques-
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed on April 6, 1961, by G. F. Miller, an individual, herein-
after called Miller or the Charging Party, the General Counsel of the National Labor
Relations Board, hereinafter called the General Counsel 1 and the Board, respectively,
by the Regional Director for the Twenty-sixth Region (Memphis, Tennessee), issued
its consolidated complaint dated August 25, 1961, against Yuba Consolidated In-
dustries, Inc., International Association of Bridge, Structural, and Ornamental Iron
Workers, AFL-CIO, Local Union No. 321, and Meehleis Steel Co., hereinafter
referred to respectively as Respondent Yuba, Respondent Union or Local 321, and
Respondent Meehleis. The consolidated complaint alleged that the Respondents
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) or Section 8(b)(2) and (1)(A) and
Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended,
herein called the Act. Copies of the charges, consolidated complaint, and notice
of hearing thereon were duly served upon the Charging Party and the Respondents.
Each Respondent duly fined its answer admitting certain allegations of the com-
plaint but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at Little Rock, Arkansas, on
October 2 and 3, 1961, before the duly designated Trial Examiner. All parties
appeared at the hearing, were represented by counsel, and were afforded full oppor-
tunity to be heard, to produce, examine, and cross-examine witnesses, to introduce
evidence material and pertinent to the issues, and were advised of their right to argue
orally upon the record and to file briefs or proposed findings and conclusions or both
Oral argument was waived. Briefs have been received from each of the parties on
November 6, 1961.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT COMPANIES
Yuba Consolidated Industries, Inc., is now and has been at all times material
herein, a California corporation doing business in the State of Arkansas with a
'This term specifically includes the attorney appearing for the General Counsel at
the hearing.
YUBA CONSOLIDATED INDUSTRIES , INC. 695
jobsite at or near Conway, Arkansas, where it is engaged in the construction of
missile bases for the United States Government.
Respondent Meehleis Steel Co. is now, and has been at all times material herein,
a California corporation doing business in the State of Arkansas with a jobsite at or
near Searcy, Arkansas, where it is engaged in the construction of missile bases for the
United States Government.
The complaint alleged, all Respondents admitted, and the Trial Examiner finds
that Respondent Yuba and Meehleis have been at all times material herein engaged
in commerce within the meaning of the Act.
II. THE RESPONDENT LABOR ORGANIZATION
International Association of Bridge , Structural , and Ornamental Iron Workers,
AFL-CIO, Local Union No. 321 , is a labor organization admitting to membership
employees of Respondent Companies.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The instant case involves the construction of missile base sites in the State of
Arkansas upon which Respondents Yuba and Meehleis were doing work under sub-
contracts from the general contractor Midland Construction Company.
Sometime in the year 1960 and prior even to the advertising for bids on this job
Associated General Contractors and the local building trade council negotiated wage
rates and working conditions for the project in compliance with the Davis-Bacon
Act. This agreement contained no union-security or closed-shop provisions.
Then in January 1961, prior to the commencement of any construction work,
Lee William Delhi, project manager for Yuba, met with a number of local building
trades unions regarding sources of and requirements for manpower. As a result of
these meetings Respondent Yuba assigned to Respondent Union its steel and iron
work including welding so far as the National Joint Board for settlement of juris-
dictional disputes was concerned. There is nothing in this record to show that this
certification gave Respondent Union any control over hiring. Respondent Union did
agree to do its best to secure the necessary skilled manpower for Respondent Yuba.
At or about the same time Sam Rogers, project manager for Meehleis, was also
meeting with the local unions with respect to sources of skilled manpower.
Both Respondent Companies were interested in available sources from which their
skilled manpower was to be obtained. Yuba was particularly interested in being
able to obtain some 200 or more welders who could be certified under U.S. Corps of
Engineers' qualifications as qualified welders using a new low hydrogen welding
method. Meehleis needed some such welders but not as many. Respondent Union
agreed to do its best to supply both Respondent Companies with such low hydrogen
welders as well as with ordinary rodmen. There was, however, no agreement that
the Union was to enjoy any exclusive hiring or union-security privileges. So far
as this record shows neither of these matters was even discussed.
The facts show that Respondent Yuba gave welding tests as required by the
project's specifications and by the U.S. Corps of Engineers for every welder working
on permanent installation to approximately 588 individuals of whom 430 passed
and 158 failed up to the time of the present hearing. Approximately 107 such
tests were given by Yuba prior to April 20, 1961. Yuba gave such tests to indi-
viduals, union and nonunion, referred to it by Respondent Union, to members of the
Pipefitters Union, and to individuals who applied to the welding superintendent of
Yuba without referral from any union.
Although the complaint alleges that "since January 31, 1961, Respondents Yuba
and Meehleis, and Respondent Union have maintained and followed a hiring arrange-
ment and practice pursuant to which Respondent Union is the sole source of appli-
cants for welders' jobs," this record is devoid of any evidence to substantiate the
existence of any such "arrangement," written or verbal, as alleged in the complaint.
In addition the evidence affirmatively shows that both Company Respondents em-
ployed both union and nonunion persons without discrimination.
It is true that Sam Rogers expressed a personal preference for respondent union
members as rodmen but his preference was based upon his past construction ex-
perience which indicated to him that union rodmen were the best in the construction
industry. Both Yuba and Meehleis were engaged in highly dangerous construction
work requiring particularly in the welding the use of only certified welders who had
passed a test satisfactory to the job specifications and to the U.S. Corps of Engineers.
Consequently both Meehleis and Yuba were searching for the best and most skillful
ironworkers and welders that they could find. Despite Rogers' publicly declared
preference for union members, the record shows that both Yuba and Meehleis em-
ployed nonunion as well as union employees.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For some 8 years prior to August 1960 the Charging Party, G. F. Miller, had
been employed as a combination welder by Reynolds Metals Co. As of August
1960, Miller was laid off by Reynolds in a reduction in force and given a very good
letter of recommendation by Reynolds.
On February 9 or 10, 1961, Miller went to the office of Midland Construction Co.
requesting work as a welder, filled out an application which he left in a box out-
side the office, and never thereafter heard from Midland regarding said application.
He never returned to Midland on the ground that he never could locate their office
even though Midland was the biggest employer of men in the area.
On February 20, 1961,2 Miller went to Respondent Local 321 because he "under-
stood that . . . they were the ones that referred them back to the job." 3 On this
occasion Miller told Business Agent J. W. Sanders that he wanted to "buy a book"
in Respondent Union. Sanders told Miller that he could not "sell" Miller a book
even if he wanted to as the Union had closed its books several years before but
that Miller would have to appear before the union executive board. Miller did see
the executive board on February 24 and answered an inquiry by a member thereof
that he "had been" certified as a welder at Reynolds but had not been so certified
"recently." Miller was asked by members of the executive board to meet with
them again in about 6 weeks' time as there was at that time no hiring being done.
Thereafter Miller visited the hall of Local 321 several times a week. He made no
application to join the Union nor did he request that his name be put on a work
roster. On one occasion he asked Sanders to refer him to a job but Sanders said
that he had to send out all his union members first before he could send anyone
else to the job.
On March 2 and 3 Miller again requested membership in Respondent Union
from Sanders who informed Miller that he would have to see the executive board as
the membership had voted to close the rolls several years before. Miller sug-
gested that he could get membership in the Shreveport local of Respondent Union.
Sanders advised him to do so if he could.
On March 9 Miller attempted in vain to get membership in the Shreveport local
of the Iron Workers being turned down by its executive board on March 13.
On March 14 Miller returned to Local 321 and offered $160 if Sanders would
"sell him a book." Sanders refused saying that he could not sell Miller a book
even if he had a "waste basket full" of money because the books were closed.
Local 32l's secretary, Campbell, confirmed this statement to Miller.
Miller was in Sanders' office at the hall of Respondent Union on the morning of
March 22 when he heard Sanders say that Meehleis had called in for men. Miller
was unable to recall if Sanders gave any of the men present referral slips to
Meehleis, or instructed any of the men to report there for work, but did recall
that there was quite an exodus of men from the hall on their way to the Meehleis'
office in Searcy. Miller testified that he waited about an hour before he made his
own exodus for Searcy along with his friend, J. B. Tittle, who during this period of
time was an almost constant companion of Miller.
At the Searcy office of Meehleis, Miller asked some "little, short, gray-haired
fellow" in the office for a welding job and, according to Miller, was told by this
otherwise unidentified individual that Miller would have come through Local 321,
"that all keymen were referred through the Company back to the Local and then
back onto the job." When Miller asked for such a referral, this individual stated
that he "could not do it, just the keymen were the only ones." Thus Miller "did
no good," was not employed.
From Searcy, Miller and Tittle went to the office of Yuba in Conway where
Miller this time talked to some otherwise unidentified "girl" in the office asking her
for a welding job. Again according to Miller this unidentified girl told him that he
"would have to go back and come back through the Iron Workers Local at Little
Rock." When Miller asked for a "referral," the girl said that they did not give
referrals. Once again, in Miller's phraseology, Miller "did no good" He was not
employed.
On March 31, Miller was back at the hall of Local 321 in order to see the
executive board at the suggestion of Sanders. On this occasion Miller did not see
the executive board because he testified he was "not called in" although a number of
other individuals present apparently did appear before the executive board in a
body.
2 All dates are in the year 1961 unless otherwise specified.
2 The record herein is silent as to how Miller arrived at this "understanding."
INDIANA LIMESTONE COMPANY , INC. 697
On April 6 Miller and Tittle filed unfair labor practice charges with the Board
against Respondent Union , Meehleis, and Yuba?
Thereafter Miller returned to Meehleis and Yuba on April 17. Rex Rogers at
Meehleis, project superintendent who did the hiring for Meehleis, told Miller, who
did not identify himself when he asked for a welding job,5 that Meehleis did not
need any welders at that time .6
This same process was repeated at Meehleis on May 18 and 26 and on June 5,
23, and 30.
On April 24 Miller returned to Yuba at the same time that National Labor
Relations Board Attorney Crawford happened to be in the Yuba office investigating
Miller 's charge. Crawford introduced Miller to Office Manager Snow and sug-
gested that Yuba give Miller the welders ' test , a suggestion Snow passed on to
Yuba Welding Superintendent Gray who gave such tests.
Miller returned to Yuba on April 26 and asked Gray to give him the welders'
test. According to Miller , Gray refused to do so on the ground that Miller did not
belong to Local 321 and so he could not give Miller the test.
Despite this alleged refusal Miller was back at Yuba on May 1 again asking Gray
to be given the welding test . Miller testified that he still thought that he "might
be able to talk" Gray into giving him the test .7 In fact Gray did give Miller the
welders' test that day. Miller failed the test.
Miller returned to Yuba and saw Gray again on June 5, Gray stated that he
could do nothing for Miller . A welder on the Yuba project had to carry his certi-
fication as a welder with him at all times during work so that said certification could
be inspected by the U.S. Corps of Engineers. No welding could be done without
that certification . Without such a certification Gray could not employ Miller as a
welder.
On June 5 Gray gave Miller the welding test again . Again Miller failed.
The Conclusions
The evidence in this case affirmatively proves that: (1) No illegal "arrangement"
existed between the Respondents; (2) no illegal "practice" was maintained among
the Respondents ; ( 3) Respondent Union was not the "sole source" of welders for
Respondent Companies ; and (4 ) Miller could not, and did not, qualify for the only
job he was asking for on this project , to wit, welding.
For the above reasons, the Trial Examiner will recommend that this complaint be
dismissed in its entirety.
4 Tittle eventually was employed by Meehleis and dropped his charges.
5 Miller testified that he always asked only for a welding job. He admitted that weld-
ing was the only work he could do as he was not a rodman.
6 The record shows that Meehleis did not hire a welder until April 24.
7 If Gray had been as definite about the need for union membership in order to give
the test as Miller's testimony of his meeting with Gray on April 26 would indicate , Miller
was either highly optimistic when he returned on May 1 or else his testimony regarding
the April 26 meeting was at least exaggerated . The only other references to unions
were supposedly made on March 22 by unidentified individuals.
Indiana Limestone Company, Inc. and Federated Council Lime-
stone Trades of Indiana , AFL-CIO
Indiana Limestone Company, Inc. and Local Lodge No. 599,
International Association of Machinists , AFL-CIO. Cases
Nos. 05-CA-1282 and 25-CA-1282-2. March 29, 1962
DECISION AND ORDER
On June 13, 1961, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
136 NLRB No. 61.