Int'l Assn. of Bridge, Etc., Local 17

National Labor Relations Board - Board Decisions

Apr 18, 1966

158 N.L.R.B. 47 (N.L.R.B. 1966)

INT'L ASSN . OF BRIDGE , ETC., LOCAL 17 47
APPENDIX
NOTICE-'TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Leather Goods, Plas-
tic & Novelty Workers' Union , AFL-CIO, or any other labor organization, by
discharging or refusing to reinstate any of our employees , or in any manner
discriminating in regard to their hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization , in a manner constituting inter-
ference , restraint, or coercion violative of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with reprisals because of the Union.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of the right to self-organization , to form organizations,
to join or assist the above-named or any other labor organization , to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer to James Gaston immediate and full reinstatement to his for-
mer or a substantially equivalent position without prejudice to seniority and
other rights and privileges and make him whole for any loss of pay suffered as
a result of the discrimination against him.
BALTIMORE LUGGAGE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , Sixth Floors
707 North Calvert Street, Baltimore , Maryland, Telephone No. 752-2159.
International Association of Bridge , Structural , and Ornamental
Iron Workers, Local No. 17, AFL-CIO [The A. J. Hoffman Co.l
and Arthur McCormick
International Union of Operating Engineers, Local No. 18, AFL-
CIO [The A. J. Hoffman Co.] and Arthur McCormick. Case&
Nos. 8-CB-933 and 8-CB-934. April 18, 1966
DECISION AND ORDER
On January 10, 1966, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were 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 Trial Exam-
iner's Decision. He further found that the Respondents had not en-
158 NLRB No. 13.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in certain ogler unfair labor practices alleged in the complaint
and recommended that they be dismissed. Thereafter, the Respond-
ents filed exceptions to the Trial Examiner's Decision and supporting
briefs; the General Counsel did not file exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Members Fanning, Brown, and Zagoria].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this proceeding, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations.'
[The Board adopted the Trial Examiner's Recommended Order.]
1In the absence of exceptions by the General Counsel, we adopt pro forma the Trial
Examiner's findings that are adverse to the position taken by the General Counsel in
support of the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These are two unfair labor practice cases which have been consolidated for the
purpose of trial. In Case No. 8-CB-933, Arthur McCormick on April 23, 1965,
filed a charge naming as Respondent International Association of Bridge, Structural,
and Ornamental Iron Workers, Local No. 17, AFL-CIO. In Case No. 8-CB-934,
Arthur McCormick on April 23, 1965, filed a charge naming as Respondent Interna-
tional Union of Operating Engineers, Local No. 18, AFL-CIO. Both charges were
amended on June 6, 1965. A consolidated complaint was issued on June 8, 1965, by
the General Counsel of the Board through the Regional Director for Region 8
(Cleveland, Ohio). That complaint, as amended at the hearing, alleges that Respond-
ents have engaged in conduct violating Section 8(b)(1)(A) and (2), and that such
conduct affects commerce within the meaning of Section 2(6) and (7), of the
National Labor Relations Act, as amended, herein called the Act. Both Respondents
have answered separately, each denying the commission of any unfair labor practices.
Pursuant to due notice, this consolidated case came on to be heard and was tried
before Trial Examiner James V. Constantine on August 9 and 10, 1965, at Cleveland,
Ohio. All parties were afforded full opportunity to ^dduce evidence, examine and
cross-examine witnesses, submit briefs, and offer oral argument. Briefs have been
received from the General Counsel and both Respondents.
At the hearing Respondents Local 17 and Local 18 moved to strike certain para-
graphs of the complaint substantially on the ground that they failed to state a cause
of action. Both motions were denied. A motion of Local 18 of the Operating Engi-
neers for separation of the witnesses was granted. When the General Counsel rested
and again at the close of the case both Respondents moved to dismiss. These motions
were denied on the ground that the General Counsel had made out a prima facie case.
A motion by Local 18 of the Operating Engineers to add The A. J. Hoffman as a
party Respondent was denied at the hearing.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Andrew J. Hoffman, an individual doing business as The A. J. Hoffman Co., herein
called the Employer or Hoffman, is engaged at Cleveland, Ohio, in the business of
fabricating and orecting structural steel and miscellaneous ironwork for buildings.
INT'L ASSN OF BRIDGE, ETC , LOCAL 17 49
Annually he receives goods valued in excess of $50,000 directly from points located
outside the State of Ohio I find that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the pur-
poses of the Act to assert jurisdiction over this proceeding
H THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural, and Ornamental Iron Workers,
Local No 17, AFL-CIO, herein called Iron Workers or Local 17, and International
Union of Operating Engineers, Local No 18, AFL-CIO, herein called Operating
Engineers or Local 18, are labor organizations within the meaning of Section 2(5)
and 8(b) of the Act
III THE UNFAIR LABOR PRACTICES
A The issues
This case centers around the alleged discharge of employee Arthur McCormick by
the Employer The issues are whether (a) Either Local 17 or Local 18 caused or
attempted to cause McCormick's discharge because he was not a member of Operat-
ing Engineers, or had not received clearance for work from Operating Engineers,
or both, (b) Locals 17 and 18 "collectively and in concert' caused or attempted to
cause McCormick's discharge because he was not a member of Operating Engineers,
and (c) either or both Respondents engaged in a strike or work stoppage to cause or
attempt to cause McCormick's discharge
B General Counsels evidence
I McCormick's testimony
McCormick was hired on October 21,1964, by Hoffman as an oiler on a Michigan
truck crane The operator of that crane was Andy Conway Included among an
oiler's duties are those of putting the rig (i e , the crane) in position to hang the steel
and also repairing and cleaning some parts of the crane At that time, and all times
material herein, the Employer as a subcontractor was putting up the steel frame of
an addition to the Ford Motor Company plant in that part of Cleveland known as
Brookpark The general contractor is Waldbridge-Aldinger Stanley Nagy is the
general contractors superintendent
On January 28, 1965, while working in the Employer's workshop, those in the shop
were approached by Business Representative John Frank of Local 18 I find that
Frank is an agent of Local 18 within the meaning of Section 2(13) of the Act When
Frank asked for the oiler, McCormick identified himself as such Frank then said to
McCormick, `Did you ever have any idt,a of joining the Union?' When McCormick
replied in the affirmative, Frank continued, "You know you have to have a book and
belong to the Union to work on this job " McCormick replied that he was not aware
of that After further conversation relating to how McCormick obtained this job,'
Frank asked if McCormick intended to join the Union McCormick replied that he
did but had missed the opportunity to do so because he went home to New Castle
on weekends Frank said, "0 K, I will see you later" and left
On the following Saturday, January 30, 1965,2 McCormick visited Frank at the
office of Local 18 McCormick asked for a' permit and so that I could go to work "
Frank replied that, "under the circumstances," he "did not have anything to offer"
McCormick because of a "rebel movements in the Union " This caused McCormick
to inquire what the rebel movement had to do with him Frank asked if that was not
one of the reasons why McCormick obtained the job Upon McCormick's denying 4
this, Frank said that he had put his cards on the table and that he might have 'some-
thing less to offer" if McCormick put his cards on the table, and that other oilers who
belonged to the Union were unemployed When McCormick insisted he was not
going to quit his job, Frank told him, "No, go ahead and work "
1 McCormick admits he lied to Frank as to the circumstances leading to his employment
by Hoffman
9All events described hereafter occurred In 1965 except where otherwise specified.
8 One Bernard Kelly McCormick 's brother in law was prominent in this `rebel move-
ment " Kelly aided McCormick in obtaining a job with Hoffman
4 McCormick lied to Frank in that Bernard Kelly did get him the job, but the denial of
this was prompted by a belief that Frank disliked Kelly
221-781-67-vol 15$-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the above conversation Frank handed McCormick an application blank
for registering under the "referral system" of Local 18, and also showed the latter a
"copy" of such system. McCormick refused to execute this card . (A few days later
Frank again gave McCormick , and the latter again refused to fill out , an identical
application blank; i.e., McCormick refused to register.) At no time did McCormick
file an application for membership in the Iron Workers or the Operating Engineers.
On Friday , February 5, while McCormick was working on the jobsite at the Ford
plant, Frank, accompanied by two other persons, came to McCormick and ordered
McCormick to get out of the rig . To McCormick' s question as to the reason for
such demand , Frank replied , "Because you are not authorized to run it . . Be-
cause you are not a Union man." McCormick said , "O.K." Thereupon Frank
reached into the truck portion of the crane , turned off the ignition , and removed the
key thereto . McCormick then jumped out and went to Crane Operator Conway,
who was at the time operating the rig, reporting the incident to Conway. At this
point Frank appeared and asked Conway if he was going to continue to run the rig.
Conway replied that he would as long as he was a part owner of it. Conway owned
a part interest in it.
McCormick did not perform any more work that day. However , he stopped work-
ing about 3:30 to 3:35 p .m. and went for coffee . The workday is from 8 a .m. to 4:30
p.m., except Friday when it ended about 4 to 4: 15 p.m. When he returned from
coffee, he observed that no work of any type was being performed on the jobsite.
McCormick then spoke to the job steward of the Iron Workers, Jerry Adams, in the
presence of Rig Operator Andy Conway, another ironworker , and Bob Chapman, the
Employer's superintendent . Adams asked , "How come they stopped the work" in
view of the fact that he thought McCormick "got straightened out with the Union on
Saturday morning." McCormick answered that "they wouldn't give me no book or
nothing" and added that he was not going to quit work . To this Adams replied
that "our business agent won 't let us work with you because you are non-Union."
In the group with Adams at the time of this talk were McCormick , Conway , Super-
intendent Chapman of Hoffman , and a few Hoffman ironworker, employees.., t
In the presence of Andy Conway, McCormick spoke' to Business Representative
Frank on Monday, February 8. During this conversation Frank insisted that McCor-
mick had to "get on the referral system ." This caused McCormick to question the
necessity of this since he already had a job and did not need to be referred. Contin-
uing, McCormick stated that all he wanted was a "permit" or a "book" so that he
could work. Frank answered , "Go ahead and work; I'm not stopping you." This
prompted McCormick to ask, "Why did you pull the Iron Workers off the job?"
Frank answered , "That's a different story." On this day, February 8, Hoffman put
McCormick to work cleaning restrooms in the office . He also did cleaning work on
February 9 and 10.
On Thursday, February 11, Hoffman told McCormick , "I can't hire you, and I can't
lay you off, and I can't afford to pay you oiler's wages for being a handyman." Then
McCormick was paid through Wednesday , February 10, and did not again work for
the Employer . He was laid off on February 11. On February 8, 9, and 10, Mc-
Cormick worked as a cleaner in the offices of Hoffman and not as an oiler on the
rig. In his application for unemployment compensation McCormick asserted he was
"Laid off for Union disagreement. " Hoffman had given him this reason in letting
him go. 1 .
At'the time when the foregoing events occurred, Operating Engineers was seeking,
but did not have, a collective -bargaining contract with Hoffman.
On Saturday , February 6, Hoffman worked on the Ford job with his own iron-
worker employees . But the rig he used was hired from another contractor, Norris
Brothers , a union contractor . In addition to the rig , Norris provided a crane operator
and oiler, both of whom were employed by Norris and not Hoffman.
2. Chapman's testimony
In the afternoon of February 5, about 3 : 30 p.m ., Frank called on Robert Chapman,
superintendent of ironworkers for Hoffman, at Hoffman 's field trailer on the jobsite.
At the time McCormick and Conway were operating the rig and eight or nine Hoff-
man ironworkers were working on the building . Walter Hulka , business agent for
Local 17 of the Iron Workers, accompanied him: Frank asked Chapman if he knew
that Hoffman was erecting steel with a•nonunion operator and oiler:, When 'Chap'man'
denied knowledge of it , Frank identifiedAndy Conway as the nonunion •man.. Frank
-then went to Hoffman 's rig and ' turned off the ignition key. 'Thereupon ' McCormick
left the rig. Then Conway and Frank got into ' an argument . Duringrythis argument,
which Chapman overheard , Hulka told Chapman that "they couldn't raise steel with-
INT'L ASSN OF BRIDGE, ETC, LOCAL 17 51
out a rig' However, Chapman prevailed upon Hulka to let the men hang the "last'
beam for the day After hanging that last' beam, Hoffman s ironworkers left for
the day Chapman also told Frank that, since only a little work remained, Frank
should let Hoffman complete it But the latter replied that Chapman should have
thought of that a week ago Then, when Frank asked Chapman what he was going
to do, Chapman replied that he would confer with owner Hoffman No work was
performed by the rig for the remainder of the day after McCormick left it about
3 35 pm
Thereupon Chapman spoke to Hoffman When Chapman returned to the jobsite
(about 4 p in ) he found all his ironworkers huddled together in the presence of Job
Steward Jerry Adams of Local 17, who was speaking to them Upon being asked by
Chapman why the ironworkers were idle, Adams replied that they could not engage
in their work of setting steel without a rig, and that Hulka told him that nonunion
men were on the job and that the ironworkers were not allowed to return to the job
until Hoffman had a Union man back on the rig ' At the time (about 4 p in )
some of Hoffman's employees were still working inside the plant Quitting time is
4 30 p in but on Fridays work stops about 4 p in
On February 12, 1965, The A J Hoffman Co and Local 18 of the Operating Engi-
neers executed a document captioned Acceptance of Agreement In material part
that instrument provides that Hoffman `approves, 'accepts,' and `becomes one of
the parties to" an agreement between Local 18 "and the Contractors of Ohio," and
that Hoffman will adhere to the referral system as spelled out in the agreement "
Before February 5 Superintendent Chapman discussed McCormick's work and
considered the possibility of letting him go on February 10, the end of a pay period
But no final or definite decision was reached
3 Conway's testimony
Andrew Conway, the operator and part owner of Hoffman s rig, testified as follows
From November 1964 to February 1965 he was employed by the A J Hoffman Co
as a crane operator The oiler 5 on his rig was Arthur McCormick About 4 p in
on February 5, Conway was setting steel at the Ford jobsite in Brookpark At the
time McCormick was `bringing the crane around at Conway s direction by signals
Suddenly the truck of the crane stopped, and, although Conway kept signalling,'
McCormick "didn't respond " This left a piece of steel dangling in the air Immedi-
ately McCormick came to Conway and reported that Frank is here and he took the
key out of the truck '6 Soon Business Representative Frank of Local 18 came to
Conway and stated, `You aie not authorized to run this machine ' This time Con-
way replied that he was "only looking after my interest " Finally, Conway did put
in another piece of steel but did not do any further erecting that day
A few minutes later Conway asked Gerald Adams, the job steward of Local 17 on
the jobsite, in the presence of a few others, one of whom was Arthur McCormick,
what the representative [Hulka] had to say ' Adams replied, "McCormick doesn't
belong to the Union, and, therefore, he told us not to work with the crane as long as
he didn't belong to the Union " On the following Monday Conway and McCormick
called on Business Representative Frank of Local 18 at the union hall When Mc
Cormick asked Frank for the "procedure" in joining the Union, Frank "mentioned
the referral system" and asked both Conway and McCormick to register on its roster
McCormick replied that, since he already had a job, it was unnecessary for him to
go to the referral system Conway also refused to register When Frank asked for
the name of McCormick s employer, he was told it was Hoffman Thereupon Frank
said, `Well, why don't you go to the job9" McCormick protested that "you seen to
it that the men out there wouldn t work with us ' To this Frank answered, that s
another story
4 Nagy's testimony
About 3 30 p m on February 5, the general contractors job superintendent, Nagy
observed Business Representative Frank of Local 18 get out of a car and talk to the
oiler on Hoffman s crane at the jobsite Nagy noticed that soon Frank turned off the
crane s key and thereupon the oiler evacuated the cab Thereafter it appeared to
Nagy as though the work had stopped Shortly thereafter Nagy asked Frank for
permission, as a i9afety measure, to start the machine again to enable the truss then
6 The oiler operates the truck on which the crane is mounted The truck moves the
crane into position
6 The rig was a truck crane i e a crane mounted on a truck
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspended in the air to be secured and to put in another truss. This would then leave
the job in a safe condition. Frank consented to this, and that operation was there-
upon finished between 4 and 4:15 p.m. No other work was performed that day.
5. Hoffman's testimony
On January 28, about 11:30 a.m., Frank and Business Representative Miller spoke
to owner Hoffman at the latter's office and warehouse. Crane Operator Conway, Oil-
er McCormick, and one Gene King were also present. When Frank asked Hoffman
where he was then operating, Hoffman replied that he was a subcontractor at the
Ford plant. Upon ascertaining that Hoffman employed a crane operator and an oiler
on the Ford job, Frank asked how they were hired. Upon Hoffman's stating that he
"imagined" they came "from the Hall," Frank insisted that they did not. Continuing,
Frank asked Hoffman to "join our organization" and informed Hoffman that Crane
Operator Conway was not a union man. However, at Hoffman's request, Conway
produced and gave to Hoffman a "union book" which Hoffman exhibited to Frank.
Then Frank remarked that the oiler on the crane was nonunion. Hoffman pro-
fessed that it was "news" to him because he thought the oiler "was a union man."
Then Hoffman and Frank repaired to Manners Restaurant where Frank tried to con-
vince Hoffman to obtain oilers from Local 18. Hoffman asked that Frank send him
a copy of the Local 18 contract with other contractors for perusal and examination,
and he promised to do so. At that time Hoffman had a collective-bargaining contract
with Local 17 of the Iron Workers covering his ironworkers, but none with any labor
organization for his rig operators and oilers.
On Friday, February 5, about 4:15 p.m., Hoffman learned from his superintendent,
Chapman, that the business agent for Local 18 of the Operaing Engineers had stopped
the operation of the crane. Soon after this Hoffman telephoned to Frank asking
why Frank "pulled the job." Frank replied that Hoffman had no contract with Local
18, and Hoffman's oiler and crane operator were "nonunion men." Hoffman there-
upon asked Frank to send him an oiler and operator in order to be able to operate
the next day, Saturday, February 6. Frank promised to do so. When Hoffman also
inquired of. Frank if Conway and McCormick would be granted a "permit" to work,
Frank replied Local 18 had a referral system with operators listed on it whom Hoff-
man could hire, but that no oiler would be sent by Local 18 to work with Conway.
Thereafter Frank, at Hoffman's request, promised to send another operator and oiler
to Hoffman for the next day. However, it developed that, because Hoffman experi-
enced union trouble on his own crane, that he hired another crane with its own crew
from another contractor. This other crew was union.
- On February 6 Hoffman spoke to Jerry Adams, the job steward of Local 17 on the
jobsite, to ascertain the cause of the events of the preceding afternoon. Adams
answered that while Business Agents Hulka and Frank were at the jobsite "the crane
was pulled off the job" because the oiler was nonunion, that Hulka told Adams that
as long as a nonunion man was on the crane they could not work the crane, that
Frank said the oiler was nonunion, and that Hulka said they could not set steel
without a crane.
The following Monday, February 8, Hoffman called Business Agent Hulka of
Local :17 about the above incident of February 5. Hulka assured Hoffman that Hoff-
man had no troubles with Local 17 but that Hoffman's troubles were with the Oper-
ating Engineers because a nonunion man was employed. Further, Hulka insisted that
Hoffman had no "crane to work with," but advised Hoffman to rent a crane until this
was "straightened out" with the Operating Engineers.
As noted above, Hoffman rented a rig for Saturday, February 6. He also operated
this leased,equipment during the following week with an operator and oiler sent to
him by Local 18.
On February 12 Business Representatives Frank and Miller of Local 18 met Hoff-
man at that Union's hall. The next day Hoffman signed a contract with Local 18
which was dated February 12.
Hoffman testified that he had to let'McCormick go because McCormick was unable
to obtain *a "permit to work" as an oiler on the crane, and Hoffman could not put him
back on the crane as a union man "since it had to be a union man." He told this to'
McCormick and added that he could not continue to use McCormick as a janitor. He
also testified that McCormick "was not learning his job" and that prior to February 5'
he had planned to get rid of him. But he finally decided not to let McCormick go, for
this reason.
At one of the meetings with Business Representative Frank of Local' 18, Hoffman
requested permission to use McCormick'and Conway to operate his crane. Frank
replied that this could be accomplished by rejecting all persons referred by Local 18
to Hoffman until McCormick's name was reached and he was dispatched.
INT'L ASSN. OF BRIDGE, ETC., LOCAL 17 53
C. Evidence of Local 18
1. John Frank's testimony
John Frank, Jr., is a business representative of Local 18. On January 28, 1965,
Frank and one Miller, another business representative of Local 18, called on A. J.
Hoffman, the proprietor of The A. J. Hoffman Co. Ascertaining from Hoffman that
he was engaged on the Ford plant job and that he had no contract with Local 18,
Frank asked him if he cared to have a contract "with us." Hoffman replied affirma-
tively and asked to examine an existing contract "to see if he could accept it." Frank
promised to mail a copy, but he never did. During this conversation the operator
of Hoffman's rig, Conway, spoke up and said he was "part owner of equipment," and
that he wanted no part of any agreement with the Operating Engineers Union.
Frank also asked Hoffman if McCormick was the oiler, and Hoffman verified this.
Frank did not ask McCormick "if he had a book" or belonged to Local 18. How-
ever, Frank did ask McCormick what his job was. McCormick stated that he was
the oiler. Then Frank asked McCormick if he had made any attempt to join Local
18. When McCormick said he had not, Frank asked if he would like to join and
McCormick said that he would.
Then Miller, Frank, and Hoffman went to a nearby coffee shop where they dis-
cussed a contract. Hoffman agreed not to operate until he met with them again on
an agreement. On or about February 12 they executed such a contract (see Respond-
ent's Exhibit No. 5) after some discussions thereon a day or two before then. In
the course of these discussions Hoffman "kept interjecting" the names of Conway and
McCormick, but was told that "we were not discussing names; we were discussing the
contract."
On February 5 Frank visited the jobsite at the Ford plant accompanied by Walter
Hulka (president of Local 17) and one Iacampo, a business representative of
Laborers Local 860. lacampo came because Frank was riding with him. Hulka
came along because Frank invited him to be there but told him nothing about Frank's
mission . That mission was to hold Hoffman to a promise , mentioned above, not to
operate at the Ford plant "until further negotiations regarding our agreement."
Leaving his companions in the vicinity, Frank went to Hoffman's rig, which at
that time was raising steel for a bay at the Ford plant. Conway was operating the
crane and, although the motor of the truck was running, the truck itself was not
moving. McCormick was sitting in the truck. Approaching McCormick, Frank
asked him if he would "support us to get a contract with Mr. Hoffman and to do the
right thing." Replying that he would, McCormick departed from the truck's cab.
Asa "safety rule" and pursuant to "standard operating procedure," Frank thereupon
turned off the ignition key because the engine is not to be left running while the
oiler is absent from the cab.
Following this, Frank asked Conway if he intended to continue operating the
crane. Conway averred that he did. When Frank asked Conway if he knew that
"we" had no contract with Hoffman, Conway replied that he did. Then Frank
solicited Conway "to support us in our effort" to obtain a contract from Hoffman.
But Conway declined to do so as long as he remained part owner of the equipment
and offered to sell his interest to Frank.
Frank then spoke to Nagy, the superintendent of the general contractor at the job-
site. When Nagy asked if there was a work stoppage and whether "they" could
continue to put the truss in place to make it safe, Frank replied that no work stoppage
existed. The crane continued to work, and all ironworkers, as well as the crane
operator, kept working. Frank left the jobsite about 4 p.m.
On July 13, 1965, Frank, accompanied by Local 318 Counsel Belkin, called upon
Hoffman. At this meeting Hoffman was asked if Local 318 had ever asked him to
discharge McCormick. Hoffman replied in the negative. Belkin also wrote down
the language used at this meeting (Respondent Local 18's Exhibit No 6) and had
Hoffman read it. Hoffman agreed it was correct. Among other things Exhibit No.
6 asserts that "at contract negotiations it was told by Belkin and Frank that the
union had no objection to McCormick being employed as long as they were on the
referral list and were referred . . . . The union never requested that McCormick
be discharged .... The sole reason for McCormick's discharge was lack of work
for him."
On January 30, when McCormick called on Frank, the latter gave McCormick
application forms for joining Local 18, a copy of the referral agreement of Local 18,
and some other documents. However, McCormick did not take them. Although
Frank requested McCormick to register under the referral system, McCormick re-
fused. But McCormick asked to join Local 18. Frank never said anything about
laying cards on the table.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later in February McCormick and Conway visited Frank. When Conway asked
for instructions on how "to get straightened out," Frank remarked that this could be
accomplished by registering under the referral system. But Conway declined, giving
as the reason that he did not believe in it. Then McCormick asked,"What about
me?" Frank insisted , "The same thing applies to you." But McCormick did not
register . Frank also told McCormick he could go back to work.
Frank insists he never asked Hoffman to discharge or lay off Conway or McCor-
mick, that he never asked McCormick if he belonged to Local 18, that he never told
Conway or McCormick to stop working on February 5, 1965 , and that he neither
sought nor was offered the support or aid of Local 17.
About February 8 Hoffman asked Frank to send him an operator and oiler because
he had erection work to complete and he wanted to get it done as soon as possible.
Frank complied but only after a contract was executed between Hoffman and Local
18. Hoffman employed this oiler for about 2 weeks, while the operator was employed
for about 2 months.
2. James O'Malley's testimony
James O'Malley, a member of Local 18, was present at the union hall on Febru-
ary 8 , 1965, when Arthur McCormick and Andrew Conway called on Business Repre-
sentative Frank. O'Malley's testimony follows. Frank explained the referral system
of Local 18 to Conway and McCormick and invited them to register under that sys-
tem and to sign application cards for membership . Conway refused to register on
the ground "that it was a crooked setup." Frank replied that "it was a normal
thing,"' and that everybody who wanted to work as an operating engineer was regis-
tered on the referral system. Then McCormick and Conway left.
D. Evidence of Local 17
1. Walter Hulka 's testimony
Walter Hulka , assistant business agent of Local 17 at the time of the hearing, was
its president in January and February 1965. In the first week of February he was
also its acting assistant business agent . About 2:45 p.m. on February 5 Business
Representative Frank of Local 18 called him to mention "there was some problem
at the Ford Motor job" and asked Hulka to meet him at the jobsite. Proceeding to
the gate of Ford's plant , Hulka found Frank and Iacampo awaiting him there.
The three then went to the jobsite, where Hulka observed the crane erecting steel.
Some of the members of Local 17 employed there talked to him while Frank visited
the crane . Hulka remained for about a half hour, during which time he observed
the members of his Local 17 setting up a jacktruss . No work stoppage occurred,
according to Hulka; in fact , the men on the ground were preparing another piece of
steel to put in the air , while the men in the air were fitting a jacktruss. The crane
definitely was being used . During this time Gerald Adams, the job steward of Local
17, asked why Hulka was present . Hulka replied that he came to ascertain that every-
thing went along in a safe manner and added that "if there were any problems" they
were not problems of the Iron Workers (Local 17). He did not order the men to stop
working. Nor did he tell Local 18 he would order the ironworkers to engage in a
work stoppage . At no time on February 5 or 6 did Hulka speak to Hoffman.
On February 9 or 10 Hoffman telephoned Hulka to inquire what Hoffman could
do "in regard to the crane ." Hulka replied that it was no concern of Local 17 but,
rather, that "it was between" Hoffman and Local 18.
2. Quentin Roth's testimony
Quentin Roth, a member.of Local 17, was employed as an ironworker by Hoffman
in January and February 1965 on the Ford job. On February 5 Roth was engaged
in erecting steel at the jobsite. His gang worked in the air . At no time did the
work of his gang stop , and he finished work shortly after the normal quitting time
of 4:15 p.m. on Fridays. However he came down from the steel frame about 3.30
p.m. to prepare for going home, pursuant to the usual practice on Fridays. On
February 5, according to Roth, ironworkers were engaged at their trade not only on
the building but also on the ground between 3 :30 and 3:45 p.m. Nothing unusual
took place during that time, although Roth noticed Hulka at the scene.
3. Testimony of Gerald Adams
Job Steward Gerald Adams of Local 17 in 1965 was employed by The A. J. Hoff-
man Co . as an ironworker . While engaged in raising trusses and steel on the Ford
INT'L ASSN OF BRIDGE, ETC , LOCAL 17 55
plant, Adams spoke to Hulka about 3 45 p m on February 5 This was after Adams
and the other ironworkers with him in the air had finished making a steel connection
Adams asked Hulka what was going on Hulka replied that the Engineers had a
little problem there, that nonunion men were working on the crane, that Local 18
was trying to straighten it out, and that Local 18 was going to take care of their
problems " Adams mentioned that he had heard some nonunion men were work-
ing on the crane Then Adams returned to work on the top of the buliding and
worked for the remainder of the day Hulka did not tell Adams to take the iron-
workers off the job According to Adams, all ironworkers on the ground and in the
air continued working until quitting time
Upon quitting, Adams went to Hoffman s nearby trailer where, in addition to him,
about five other employees were congregated Some were not ironworkers As
Adams puts it, "Everybody was curious to find out what happened," and everyone
was "voicing an opinion on it " Adams "probably expressed [his] own opinion" to
the group, but he did not tell them that Hulka had directed him to say anything
Then all those in the trailer left
Adams and other ironworkers worked the next day, Saturday, at the Ford jobsite
The "problem' of the previous day was probably mentioned' when Adams spoke to
Hoffman on that Saturday On cross-examination Adams testified that when he
joined Local 17 he was told that he could not work with nonunion employees
E Concluding findings and discussion as to Respondent Local 18
Patently McCormick was not a member of Local 18 Equally manifest is the
fact that prior to February 12 Hoffman did not recognize, or have a contract with,
Local 18 or any other labor organization covering any of Hoffman's crane employees,
that Hoffman's crane operator, Conway, and oiler, McCormick, performed functions
usually subject to the jurisdiction of Local 18, and that Hoffman recognized, and was
a party to, a collective-bargaining contract with, Local 17 covering Hoffman's iron-
workers
On January 28 and at all other material times Hoffman was engaged as the steel
erection subcontractor on the Ford plant job, where Conway was operating the crane
and McCormick acted as oiler As such oiler, McCormick operated the truck which
moved the crane On that date Business Representative Frank of Local 18 visited
the jobsite At least one of his purposes was to obtain a collective-bargaining con-
tract with an exclusive hiring hall clause While there Frank ascertained that the
oiler on Hoffman's crane was McCormick and that McCormick was not a member of
Local 18 Frank invited McCormick to join Local 18 Additionally, Frank informed
McCormick that he was required to belong to Local 18 to work on the job 7 and Frank
also without success sought to obtain a contract with Hoffman
On Saturday, January 30, McCormick called on Frank During this interview
Frank tried unsuccessfully to induce McCormick to register under the referral system
of Local 18 Frank also denied McCormick a work permit because other oilers
were out of work, and because McCormick refused to reveal who got him his job
The foregoing findings shed light on the events which occurred on February 5
and thereafter They disclose, sand I find, that Frank was interested in (a) unionizing
Hoffman's employees working on his cranes, and (b) obtaining an exclusive hiring hall
arrangement whereby Local 18 would refer all crane operators and oilers to Hoffman
Further, I find that Frank, as an agent of Local 18, for whose conduct Local 18 is
accountable, on February 5 attempted to cause Hoffman to discharge McCormick
because McCormick was not a member of Local 18 and also because McCormick was
not referred to Hoffman by Local 18 pursuant to its referral or hiring hall procedures
The evidence of Local 18 is not credited insofar as it conflicts with this finding And
I find that such attempt to cause McCormick's discharge is an attempt to cause
Hoffman to discriminate against McCormick in violation of Section 8(a)(3) of the
Act Hence I find that such conduct contravenes Section 8(b) (2) of the Act
In this respect I find that Frank (a) ordered McCormick out of the rig because
McCormick was not a union man and, therefore, unauthorized to run it, and (b)
turned off the ignition key, thus preventing McCormick from continuing work I do
not credit Frank' s denial of (a) above As to (b), although Frank admitted he turned
off the ignition key, he claimed this occurred as a safety precaution after McCormick
left the cab of the rig However, I do not credit Frank that this happened after,
rather than before, McCormick's departure not only because I credit McCormick
but also because the general contractor's superintendent, Nagy and Hoffman's super-
intendent , Chapman, both of whom I credit, corroborate McCormick Hence I find
that Frank shut off the ignition in furtherance of his demand that McCormick leave
7 1 do not credit Frank's contrary testimony on this issue
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job because he was a nonunion man and because he had not been referred by
Local 18.
Nor does the fact that Frank did not make a demand to Hoffman on February 5
detract from the finding that Frank attempted to cause McCormick's discharge.
Although Frank made no express demand upon Hoffman that McCormick be dis-
charged, I find that such demand may be inferred under all the circumstances of this
case. Those circumstances include the events of January 28, as set forth above,
together with subsequent events, as hereinafter narrated, including the following:
a. Frank pulled out the ignition key in a manner which stopped the crane and
thus left a piece of steel suspended in the air. This was notice to Hoffman's super-
intendent on the job, Chapman, who, in turn, requested permission to finish erecting
that particular piece of steel. Chapman then conveyed this information to Hoffman
about 4:30 p.m. on February 5.
b. When Hoffman shortly after 4:30 p.m. on February 5 inquired of Frank why
Frank had pulled the job, Frank replied that Hoffman was employing a nonunion
operator and oiler on the rig. To the extent that Respondent's evidence clashes with
this finding I do not credit it. After a shDrt discussion Frank agreed to send two,
union men to the job so Hoffman could continue his erecting work. Further, I find,
even on Respondent's own evidence, that Frank was also insisting on a contract
which contained an exclusive hiring hall clause; i.e., McCormick had to lay off all his
present rig employees and then hire all present and future employees only from
among those referred by Local 18. But this meant that Frank in effect was demanding
the discharge of McCormick. Cf. United Brotherhood of Carpenters, etc. (Endicott
Church Furniture, Inc.), 125 NLRB 853, 859. Such a demand is unlawful under
Section 8(b) (2) of the Act for two reasons: one, Local 18 was a minority union,
as it did not represent a majority of the crane employees, and a minority union may
not lawfully demand such a contract (International Ladies' Garment Workers' Union
AFL-CIO (Bernhard-Altmann Texas Corp.) v. N.L.R.B., 366 U.S. 731); and two, an
exclusive hiring hall arrangement, even when valid, may not lawfully displace or
discharge employees already at work prior to its adoption solely on the ground that
they must give way to those now unemployed who rank at the top of the register.
Cf. Journeymen Plasterers' Protective and Benevolent Society of Chicago, Local No.
5 (John P. Phillips Plastering Co., Inc.), 145 NLRB 1608, 1609; Local 30, Interna-
tional Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO
(Armstrong Contracting & Supply Corporation), 153 NLRB 1155.
Of course, ,a naked request that an employer discharge an employee, or execute an
illegal contract, or both, is not proscribed by .the Act. Denver Building and Construc-
tion Trades Council (Henry Shore), 90 NLRB 1768. But when those requests are
enforced by coercive tactics then this amounts to an attempt to cause within the
proscriptive scope of Section 8(b)(2). I find such coercion in Frank's turning off
the ignition key before McCormick left the truck,8.thus causing steel to be suspended
in the air, and in Frank's causing a strike or "pulling the job." Frank in effect ad-
mitted to Hoffman that he pulled the job because, when Hoffman asked him why the
job had been pulled, Frank replied that it was because Hoffman's operator and oiler
were nonunion. I do not credit the contrary evidence of Local 18.
It is true there is evidence in the record, which I credit, that Hoffman's employees
had almost finished the day when Frank turned off the ignition. But this does not
detract from the finding that the job was pulled. This is because I further find that
Frank's action left a piece of steel dangling in the air and that it was set in place only
by his subsequent permission to continue with the erection. This establishes that
work had not been completed when Frank turned off the key. Moreover Hoffman
operated the crane the next day (February 6) only through another contractor. If,
Frank had not pulled the job it would not have been necessary for Hoffman to hire
a union contractor to do his work. Thus the coercive effect of turning off the key
proximately caused Hoffman to avoid using McCormick as an oiler on February 6.
But I do find that the employees did not work after the truss was installed at 4 p.m.
because they had finished the day and not because the job had been pulled a second
time; to this extent, I do not credit the General Counsel's evidence .9
8I credit McCormick on this aspect of the case and do not credit Frank that he turned
off the key as a safety measure after McCormick departed from the truck.
Crediting witnesses in part only does not disclose any inconsistency by me. For a
trier of facts may accept in part and reject in part the testimony of any witness.
Marquandt v. Y.W.C.A., 282 Mass. 28, 184 N.E. 287. Nor am I required to accept un-
contradicted testimony. Northeastern Barrel Co. v. Binder, 341 Mass. 710, 712, 172 N.E.
2d 123, 124; Young Ah Chor v. John Foster Dulles, 270 F 2d 338, 341 (C.A. 9) ; N.L R.B.
v. Howell Chevrolet Company, 204 F. 2d 79 , 86 (C.A. 9), affd. on other grounds 346
U.S. 482.
INT'L ASSN. OF BRIDGE , ETC., LOCAL 17 57
Further, I find that on February 6 Hoffman yielded to the pressure of Local 18
by taking McCormick off the rig and assigning him to work elsewhere, as well as by
hiring a union contractor to substitute temporarily on the job for Hoffman. I also
find that Hoffman succumbed to the coercive attempts of Local 18 by permanently
laying off McCormick on February 11 and replacing him with an oiler dispatched
by Local 18. Hence I find that McCormick's assignment of February 6 to nonrig
work and his discharge of February 11 were proximately caused by Respondent
Local 18 and contravene Section 8(b)(2) and (1)(a) of the Act. Although I find
that Hoffman at one time contemplated releasing McCormick as an unsatisfactory
worker, I find that he was not transferred to other work or discharged for this reason.
This is because I credit Hoffman that he laid off McCormick solely because of union
pressure.
It is true that Frank told both McCormick and Hoffman that he had no objection
to the employment of McCormick. But Frank's actions as described herein rebut
his statements. Thus Frank (a) insisted that McCormick join Local 18 and that
Hoffman obtain crane employees only by referral from Local 18, and (b) supple-
mented this demand by his coercive tactics of February 5. Even when Hoffman
sought to obtain Frank's approval to employ McCormick while discussing certain
matters with Frank and Attorney Belkin of Local 18, Frank refused to sanction this.
I credit Hoffman's version of this conversation. But even the evidence of Local 18
shows that Frank refused to discuss McCormick when Hoffman pressed the ques-
tion of McCormick's employment.
To recapitulate as to Local 18: I find that it attempted to cause and caused Mc-
Cormick's discharge because he was not a member of Local 18 and because he had
not been dispatched by Local 18, and that Local 18 engaged in a strike or work stop-
page to attempt to cause, and it did cause, McCormick's said discharge. I find such
conduct is forbidden by Section 8(b)(2) 10 and that the strike also violates Section
8(b)(1)(a) of the Act.
If material, I find that Local 18 did not cause or attempt to cause McCormick's dis-
charge by executing the contract of February 12. (Respondent Local 18's Exhibit
No. 5.) Since this was consummated on February 12, after the discharge of Mc-
Cormick on February 11, it cannot be causally linked to that discharge. Nor do I
pass on the validity of that contract since the complaint does not attack it.
Exclusive hiring halls or referral systems have been upheld only when created by a
valid contractural arrangement. Local 357, International Brotherhood of Teamsters,
etc. (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667.
If material, I find that Frank offered McCormick membership in Local 18 and
invited McCormick to register with Local 18 on January 28 and thereafter. How-
ever, I find that this fact does not afford Local 18 a defense to this proceeding be-
cause McCormick was entitled to remain on the job without joining Local 18 until
such time if at all, as the proviso to Section 8(a)(3) became operative. But the
record is barren of any evidence that said proviso became nascent by a viable con-
tract between January 28 and February 11, or that at any time between January 28 and
February 11 the 30-day escape period expired as to McCormick. In fact it is admitted
that no contract between Hoffman and Local 18 was in existence until February 12.
Hence the proviso could not have been invoked before February 12.
Accordingly, I find that by said conduct, recited above, Local 18 violated Section
8(b)(1)(a) and (2) of the Act.
In assessing McCormick's credibility, I have not overlooked the admitted facts
that he lied to Frank as to who helped McCormick obtain employment with Hoffman,
and that McCormick filed the charge herein because someone told him backpay would
amount to getting something for nothing." The fact that McCormick will benefit
from the charge is no defense. Cf. Leeding Sales Co., Inc., 155 NLRB 755.
F. Concluding findings and conclusions as to Local 17
Local 17 did not have a dispute with Hoffman or McCormick. In fact Hoffman
not only recognized Local 17 as the collective-bargaining representative of his iron-
10 In making this ultimate finding I have not considered as affirmative media of proof
such evidence of Respondents which I have rejected . For nonacceptance of a defense is
insufficient to sustain the General Counsel 's burden of proof ; he must establish his case
by affirmative evidence . Guinan v . Famous Players, 167 N.E. 235, 243 ( Mass. ) ; N.L.R.B.
v. Audio Industries, Inc., 313 F. 2d 858, 863 ( C A. 7) ; Portable Electric Tools, Inc. v.
N.L.R.B., 309 F. 2d 423, 426 (C.A. 7).
n Evidence of the financial interest of a witness in the outcome of a case is admissi-
ble. Thomas Wheeler V. 'United States of America, 351 F. 2d 946 ( C.A. 1).
58 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
workers, but also had a contract with it for such employees. About 3:45 p.m. on
February 5, Walter Hulka, whom I find is an agent of Local 17 under Sections 2(13)
and 8(b) of the Act, met Business Representative Frank of Local 18 at the jobsite
pursuant to Frank's invitation to meet him there. Although Hulka testified that
he knew Local 18 had a "problem" at the Ford job, he also testified that neither then
nor at any prior or later time did he know the nature of that problem. But I am
unable to credit Hulka that he was unaware of the gist of the dispute between Local
18 and Hoffman. This is because I credit Job Steward Gerald Adams of Local 17,
whom Local 17 put on as a witness, that, replying to a question from Adams at the
jobsite as to what was going on, Hulka stated that Local 18 had a little problem
there consisting of nonunion men who were working on the crane, and that Local 18
would straighten it out and take care of the problem.
There is sound reason for crediting Adams upon this crucial aspect of the case.
In the first place, Adams was not only a job steward but also a witness for Local 17.
He was not adverse, hostile, or unwilling. There was thus no occasion for Adams to
color or misrepresent the conversation he had with Hulka. Patently Adams was not
prejudiced against his own union. Secondly, Hulka acamits he talked to Adams,
that Adams asked him why he was present, and that, in answering, Hulka in part
said that the "problems" were not those of Local 17. It is inconceivable that Hulka
would discuss the problem of Local 18 without disclosing the character of that prob-
lem. Thus it is probable that Hulka, as Adams testified, identified the "problem" of
Local 18 which accounted for Hulka's presence there as the employment of non-
union men on Hoffman's crane. Then, again, Hulka came only because Local 18
requested it. Finally, Adams admittedly spoke to other employees shortly after
Hulka departed from the scene. During this conversation Adams and the others
discussed "what happened" and everyone expressed an opinion "on it." Since Adams
took part in the discussions with a knowledge of the events which generated the talk,
be must have obtained information about "what happened." Some of this informa-
tion related to the employment of nonunion men on the crane. But Adams must
have acquired this information from Hulka, since Hulka gave an answer to Adams
when Adams asked to know what transpired to bring Hulka there.iz
Hence I find that Hulka was aware when he arrived at the jobsite that Frank of
Local 18 had a problem there and that such problem centered around the use of
nonunion employees on Hoffman's rig and the failure of such employees to be referred
by Local 18.
The next question is to determine whether Hulka directly called a strike himself
or instructed Adams to call a strike of the ironworkers. In the absence of evidence
that Hulka spoke to any employees, other than Adams, I find that Hulka did not
directly call for a work stoppage. But I find that Hulka instructed Adams to call a
strike or work stoppage. On this issue I ,am unable to credit Adams and Hulka, both
of whom denied that Hulka requested or instructed Adams to pull the job. The fact
that I have credited Adams and Hulka in many other respects does not preclude me
from rejecting some other part or parts of their testimony. For it is within the
province of a trier of facts to credit in part and reject in part the oral testimony
of any witness., Commonwealth v. Holiday, 206 N.E. 2d 691, 693 (Mass.); Mar-
quandt v. Y.W.C.A., 282 Mass. 28, 184 N.E. 287. Cf. N.L.R.B. v. Pittsburgh S. S.
Company, 337 U.S. 656, 659; N.L.R.B. v. Robbins Tire & Rubber Company, Inc., 161
F. 2d 798, 800 (C.A. 5). Nor does the testimony of Roth compel a finding of no
work stoppage, for Roth was not in a position to observe all employees on the job.
On the other hand, I credit McCormick that (a) Adams, shortly after 4 p.m. on
February 5, asked McCormick why "they stopped the work" because Adams was
under the impression that McCormick "got straightened out with the Union," and
(b) in this same conversation Adams stated that the business agent of Local 17
"won't let us work with you because you are non-Union." And I credit Adams
when he testified on cross-examination that, when he joined Local 17, he was told
that he could not work with nonunion employees. Cf. United Brotherhood of Car-
penters, etc. (Wadsworth Building Company, Inc.), 81 NLRB 802, 817. Further I
credit Chapman, Hoffman's superintendent, that Hulka told him that "they couldn't
raise steel without a rig," that Chapman prevailed on Hulka to allow Hoffman to
hang the last beam for the day, and that Adams told Chapman that Hoffman's iron-
workers were not allowed to return to the job until a union man was placed on the
rig. It may fairly be inferred from the above findings that Hulka authorized Adams
to call a strike and that Adams did so. Accordingly, .1 draw that inference.
v Moreover, I credit Hoffman that when he talked to Hulks about February 9 or 10,
Hulka referred to a nonunion man on the rig as the source, of the trouble between
Hoffman and Local 18. This also confirms Adams.
INT'L ASSN. OF BRIDGE, ETC., LOCAL 17 59,
Respondent's evidence not consonant with the finding of a strike by Local 17
is not credited. It is true that both Adams and Hulka denied that any work stop-
page occurred, but I have not credited this testimony. It is also true that the evi-
dence shows that the workday was about over when Hulka and Frank left the job-
site, and that those men whom Frank and Hulka observed continued to work while
Frank and Hulka were present. But this is not inconsistent with a work stoppage;
moreover, some of the ironworkers did stop working, although only for a short while,
and returned to work only after Superintendent Chapman induced Hulka to let the
ironworkers hang the beam which they were working on. It is of no consequence
that Chapman asked for, and was granted, permission to proceed as a safety measure
because steel was suspended precariously in the air. The crucial fact is that Chap-
man's men did not resume work, that Chapman was unable to complete that specific
operation, without obtaining Hulka,'s permission therefor. If no work stoppage was
in effect it would not have been necessary to obtain Hulka's authorization to finish
the work of setting that particular piece of steel.
On February 9 or 10, when Hoffman asked Hulka what Hoffman could do "in
regard to the crane," Hulka replied that it was no concern of Local 17 and that the
difficulty was between Hoffman and Local 18. I credit this testimony of Hulka.
But it does not refute a work stoppage by Local 17 on February 5. At most it de-
notes that no differences existed between Local 17 and Hoffman.
Finally, I find that on February 6 and thereafter 13 Hoffman operated the rig with
members of Local 18 who had been referred by it and that Hoffman's ironworkers,
who are members of Local 17, worked without incident. This to some extent
indicates that Local 17 had cleared its members to work for Hoffman after having
ascertained that union men operated the rig, and thus supports the finding that Local
17 called a work stoppage on February 5 because the men on the rig did not belong
to, and were not referred by, Local 18. .
On the basis of the above findings and the entire record, I find that the work
stoppage of February 5 constitutes an attempt to cause Hoffman to discriminate
against McCormick. This is banned by Section 8(b) (2) of the Act. National Mari-
time Union of America, etc. (The Texas Company), 78 NLRB 971. See Henry
Shore, 90 NLRB 1768; Wadsworth Building Co., 81 NLRB 802. However, an at-
tempt of this description, without more, does not contravene Section 8 (b) (1) (A)
of the Act. National Maritime Union 78 NLRB 971; Medford Building and Con-
struction Trades Council of the A.F.L. (Kogap Lumber Industries), 96 NLRB 165.
See N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, Teamsters
(Curtis Bros.), 362 U.S. 274. But 1 find that the attempt under consideration re-
sulted in the discharge of McCormick. Thus something more attended the attempt;
i.e., the work stoppage caused the discriminatory discharge of McCormick. Hence
I find that Locals 17 and 18 thereby also engaged in conduct banned by Section
8(b)(1)(A) of the Act.
G. Concluding findings and discussion on the issue of whether Respondents
acted "collectively and in concert"
Respondents are accused of acting "collectively and in concert" to attempt to cause
and to cause the unlawful discharge of McCormick.
In essence concerted or collective action involves an intention to engage in com-
bined effort. Its core is an agreement, combination, or conspiracy. United States
of America v. Nirvana W. Zuideveld and Jack Zuideveld, 316 F. 2d 873, 878 (C.A.
7); Ingram et al. v. United States, 360 U.S. 672, 678-679. Moreover, "charges of
conspiracy are not to be made out by piling inference upon inference, ..." Ingram
v. U.S., supra, at 680. "Furthermore, to establish the intent, the evidence ... must
be clear, not equivocal." Direct Sales Co. v. U.S, 319 U.S. 703, 711. Of course, as
the above cases recognize, the agreement may be established by circumstantial
evidence when direct evidence is unavailable. However, I find no direct evidence of
such agreement or conspiracy. The question then is whether the record contains
circumstantial evidencethereof.
It is my opinion, and I find, that no conspiracy, agreement, or combination existed
between Frank and Hulka It is true that Frank asked Hulka to come to the scene
of the dispute between Local 18 and Hoffman. But Frank also invited Business
Representative lacampo of Laborers Local 860 to the same situs at the same time.
These two invitations are colorless in establishing an agreement to commit an unlaw-
ful act. In fact, no one contends lacampo is part of the conspiracy. It is also true
is For a short period after February 5 another contractor performed the steel erection
at Hoffman's request But such contractor was union and his employees were referred
by Local 18.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I have found that Frank informed Hulka that nonunion men were working on
this rig. But this accomplishes no more than to alert I-Iulka to the fact that mem-
bers of Hulka's union were engaged on a job where nonunion men were also par-
ticipating. This hardly points to an agreement or conspiracy.
Further, it is likewise true that I have found that Hulka did call a strike or work
stoppage. But it cannot reasonably be inferred that such strike resulted from an
agreement between Hulka and Frank. See Atlantic Mills Servicing Corp. of Wiscon-
sin d/bla Atlantic Thrift Center, 155 NLRB 853. Cf Joliet Contractors Associa-
tion et al. v. N.L.R.B., 202 F. 2d 606 (C.A. 7); United States v. American Precision
Products Corp. et al, 115 F. Supp. 823, 826 (D.C.N.J.). At most the strike called
by Hulka discloses that Hulka was not indifferent to the cause of Local 18; but this
is far from constituting clear and unequivocal evidence that Hulka acted pursuant to
an agreement or conspiracy between him and Frank . One union often sympathizes
with another union's effort; yet this is not enough to label the two unions as co-
conspirators to achieve a consciously predetermined plan or design
Nor do the above findings, when considered together with the entire record,
establish a conspiracy or agreement between Hulka and Frank. It follows that neither
singly nor aggregately do the above circumstantial facts establish the allegation of
the complaint that Locals 17 and 18 collaborated "collectively and in concert." Ac-
cordingly, I shall recommend dismissal of this portion of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of Respondents found to constitute unfair labor practices as set
forth in section III , above, occurring in connection with the operations of The A. J.
Hoffman Co., 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 each Respondent has engaged in certain unfair labor
practices prohibited by Section 8(b)(1)(A) and (2) of the Act, it will be recom-
mended that each be ordered to cease and desist therefrom; that each take specific
affirmative action, as set forth below, designed to effectuate the policies of the Act;
and that each notify The A. J. Hoffman Co. that it has no objection to the employ-
ment and immediate reinstatement of Arthur McCormick to his former or substan-
tially equivalent position. It will further be recommended that Arthur McCormick
be made whole by Respondents for any loss of pay he may have suffered as a result
of the discrimination against him . In making McCormick whole Respondent shall
pay to him a sum of money equal to that which he would have earned as wages
from the date of such discrimination to the date Respondents notify Hoffman that
they have no objection to the employment of McCormick , less his net earnings dur-
ing such period. Any backpay due shall be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest there-
on at 6 percent per annum pursuant to the formula adopted in Isis Plumbing &
Heating Co., 138 NLRB 716.
Although the conduct of Respondents does not demonstrate general hostility to
the purposes of the Act, it nevertheless is of a type which may be repeated in a
different context . Hence I find it is proper that similar or like action by Respondents,
as well as the conduct found illegal, be enjoined. But the conduct of Respondents
as unfolded by the record does not reveal a propensity to extend their activities to
other employers. Hence a narrow order against them is warranted Communica-
tion Workers of America, AFL-CIO and Local No. 4372, etc. (Ohio Consolidated
Tele. Co.) v. N.L.R.B., 362 U.S. 479. In my opinion, International Union of Operat-
ing Engineers, Local 925, AFL-CIO (J. L. Manta, Inc., et al.), 154 NLRB 671,
is distinguishable.
Upon the basis of the foregoing findings of fact , and upon ,the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Locals 17 and 18 are labor organizations within the meaning of Sections 2(5)
and 8 (b) of the Act.
2. The A. J. Hoffman Co. is an employer engaged in commerce as defined in Sec-
tion 2 (6) and (7) of the Act.
INT'L ASSN. OF BRIDGE , ETC., LOCAL 17 61
3. By attempting to cause and causing The A. J. Hoffman Co. to discriminate
against Arthur McCormick, an employee of said Hoffman, in violation of Section
8(a)(3) of the Act, Local 18 has engaged in unfair labor practices within the mean-
ing of Section 8(b) (2) of the Act.
4. By calling a strike of Hoffman's ironworkers in order to support the demands
of Local 18 that McCormick be discharged for not being a member of Local 18 and
not being referred by Local 18, Iron Workers Local 17 has caused and attempted to
cause Hoffman, McCormick's employer, to discriminate against and discharge Mc-
Cormick in violation of Section 8(a)(3) of the Act, and thereby has engaged in
unfair labor practices within the meaning of Section 8(b) (2) of the Act.
5. By its conduct described in paragraph 3, above, Local 18 has engaged in unfair
labor practices within the meaning of Section 8(b)(1) (A) of the Act.
6. By its conduct set forth in paragraph 4, above, Local 17 has engaged in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The above-described unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
8. Respondents have not committed any other unfair labor practices alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Respondents, Locals 18 and 17 and
their respective officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause The A. J. Hoffman Co. to discharge or other-
wise discriminate against Arthur McCormick because of nonmembership in a labor
organization or because he has not been referred 14 by Local 18, or to discriminate
against any other employee of Hoffman because of nonmembership in a labor
organization.
(b) In any like or related manner restraining or coercing the employees of The
A. J. Hoffman Co. in the exercise of rights guaranteed them in Section 7 of the Act,
except to the extent that such rights maybe affected by an agreement authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Notify The A. J. Hoffman Co., in writing, and furnish McCormick with a
copy thereof, that they have no objection to the employment of Arthur McCormick
and to his immediate and full reinstatement to his former or substantially equivalent
position.
(b) Make whole Arthur McCormick for any loss of pay he may have suffered
by reason of the discrimination against him, in the manner set forth in the section
herein entitled "The Remedy."
(c) Notify Arthur McCormick if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at the business offices and meeting halls of Locals 17 and 18, copies of
the attached applicable notices marked "Appendix." 15 Applicable copies of said
notice to be furnished by Regional Director for Region 8, shall, after being duly
signed by an authorized representative of such Respondents, be posted by each
Respondent immediately upon receipt thereof , and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by such Re-
spondents to insure that said notices are not altered, defaced, or covered by any other
material.
"Since Local 18 now has a contract with Hoffman , its referral system cannot bind
McCormick because he was discharged before its adoption . However, new employees will
be subject to its provisions until and unless the contract is declared illegal.
is If this Recommended Order is adopted by the Board , the words "a Decision and
'Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice. If 'the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by substituting , the words "a Decree of the
United States Court of Anneals. Enforcing an Order" for the words "a Decision and Order."
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 8, in writing, within 20 days from
the date of the receipt of this Decision, what steps each Respondent has taken to
comply herewith.16
It is further recommended that the complaint be dismissed in all other respects.
'@If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondents have taken to comply herewtih."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL,
AND ORNAMENTAL IRON WORKERS, LocAL No. 17, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our members that:
WE WILL NOT cause or attempt to cause The A. J. Hoffman Co. to discharge
or otherwise discriminate against Arthur McCormick because of nonmember-
ship in a labor organization or because he has not been referred by Local 17,
or to discriminate against any other employee of Hoffman because of nonmem-
bership in a labor organization.
WE WILL NOT in any like or related manner restrain or coerce the employees
of The A. J. Hoffman Co. in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agreement
authorized in Section 8(a)(3) of the Act.
WE WILL notify, in writing, The A. J. Hoffman Co. that we have no objection
to the employment of Arthur McCormick and to his immediate and full rein-
statement to his former or substantially equivalent position.
WE WILL make whole Arthur McCormick for any loss of pay he may have
suffered by reason of any discriminatory action by us against him.
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND
ORNAMENTAL IRON WORKERS, LOCAL No. 17, AFL-CIO,
Labor Organization.
Dated------------------ By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. 621-4465.
Suniland Furniture Company and General Drivers, Warehouse-
men & Helpers Local Union No . 968, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case No. 23-CA-2028. April 18,
1966
DECISION AND ORDER
On January 7, 1966, Trial' Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
158 NLRB No. 17.