R.B. Guerin & Co.

National Labor Relations Board - Board Decisions

Jan 30, 1951

92 N.L.R.B. 1698 (N.L.R.B. 1951)

In the Matter Of ROBERT S. GUERIN, RAYBURN B. G=, IN AND ED R.
GUERIN, INDIVIDUALLY AND AS CO-PARTNERS, D/B/A R. B. GUERIN
& COMPANY, GENE$AIJ CONTRACTORS and DICK W. SPICHER, AN
INDIVIDUAL
Case No. 20-CA-20714.-Decided January 30, 1951
DECISION AND ORDER
On September 27, 1950, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents. filed
exceptions to the Intermediate Report.
The Board 1 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 the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions and modifications :2
1. The Trial Examiner found, and we agree, that the Respondents
are engaged in interstate commerce and that it would effectuate the
policies of the Act to assert jurisdiction herein. The Respondents'
operations during the period from June 1, 1949, through Jude 30,
1950,3 which are fully described in the Intermediate Report, included
the clearing, filling, grading, and drainage of part of California State
Highway No. 28. This highway connects with Nevada State High-
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Houston , Murdock, and. Styles].
2 We do not predicate our findings herein on any evidence relating to the organization
and functions of The Associated General Contractors of America (AGC) or the Respond-
ents' connection with this organization . Therefore , we find it unnecessary to pass upon
the Respondents ' motion to strike such evidence . Nor do we find merit in the Respondents'
motion to dismiss the complaint because of the.nonjoinder of AGC and Operating Engineers
Local Union No. 3 of the International Union of Operating Engineers, herein called the
Union. As the complaint herein does not allege that either AGC or the Union has violated
the Act, neither is a necessary party to this proceeding. See National Union of Marine
Cooks and Stewards , C. I. 0., 92 NLRB 877.
3 The Trial Examiner erroneously stated that this period extended from June 1, 1949,
until June 1, 1950.
92 NLRB No. 255.
1698
GUERIN & COMPANY 1699
way No. 8A and portions of it coincide with U. S. Highways 299 and
.395. The amount received for this phase of the Respondents' opera-
tions exceeded $683,500. As the repair and maintenance of .roads
forming a part of an artery of commerce constitute services to an in-
strumentality of commerce, and as the services rendered by the Re-
spondents exceeded $50,000 for a 1-year period, the assertion of juris-
diction in this case accords with our recently announced jurisdictional
policy.4
2. We agree with the Trial Examiner, for the reasons stated by him,
that the Respondents discharged Dick W. Spicher on July 8; .1949, in
.violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
ORDERS
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Robert S. Guerin, Rayburn
B. Guerin and Ed R. Guerin, individually and as co-partners, d/b/a
R. B. Guerin & Company, General Contractors, South San Francisco,
California, their agents and assigns shall :
1. Cease and desist from :
(a) Encouraging membership in Operating Engineers Local Union
No. 3 of the International Union of Operating Engineers, or in any
other labor organization of their employees, by discharging any of
their employees or discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of their
employment;
(b) In any other manner interfering with, restraining; or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Dick W. Spicher, in the manner set forth in the sec-
tion of the Intermediate Report entitled "The remedy," for any loss
' Cf. Hollow Tree Lumber Company , 91 NLRB 635 . Depew Paving Co ., Inc., 92 NLRB
142.
8 The Order herein is that recommended by the Trial Examiner , which we adopt in
the absence of any exceptions thereto.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay he may have suffered as a result of the Respondents' discrimi-
nation against him;
(b) Upon request, make, available to the National. Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to an analysis of the amount
of back pay due under the terms of this Order;
(c) Post at their main office in South San Francisco, California,
at their branch office in Cedarville, Modoc County, California, and at
any other projects presently operated by them, copies of the notice at-
tached to the Intermediate Report and marked Appendix A .6 Copies
of said notice, to be furnished by the Regional Director for the
Twentieth Region, shall, after being duly signed by the Respondents'
representative, be posted by the Respondents immediately upon receipt
thereof and maintained by them for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are not altered, defaced,
or covered by any other material;
(d) Notify the Regional, Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
INTERMEDIATE REPORT
Harry Bamford , Esq., for the General Counsel.
John G. Evans, Esq., of San Francisco , Calif., for Respondent.
STATEMENT OF THE CASE
Upon a first amended charge filed January 6, 1950, by Dick W. Spicher,
'through E. S. Hawkins, attorney-in-fact, the General Counsel of the National
Labor Relations Board, herein called respectively the General Counsel and the
Board, by the Regional Director for the Twentieth Region (San Francisco,
California), issued a complaint dated April 20, 1950, against Robert S. Guerin,
Rayburn B. Guerin, and Ed R. Guerin, individually and as co- partners, doing
business as R. B . Guerin and Company, herein called the Respondents, alleging
that Respondents had engaged in and were engaging in certain unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint, first amended charge, and notice of hearing
thereon were duly served upon Respondents and the charging party.
6 This notice, however, shall he, and it hereby is, amended by striking from line 3
thereof the words, "The recommendations of a Trial Examiner ," and substituting in lieu
thereof the words, "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, there shall be inserted before the words,
"A Decision and Order," the words, "A Decree of the United States Court of Appeals
Enforcing."
GUERIN & CONTANY 1701
With respect to the- unfair labor practices, the complaint alleged in substance
that Respondents are in the business of general contracting and construction
work in the State of California, and in the conduct of that business have caused
the transportation in interstate commerce of substantial amounts of equipment,
material, and supplies, and that on or about July 8, 1949, Respondents discharged
Dick W. Spicher from their employ on their construction operatiu:is near Alturas,
California, because he did not have a clearance from Operating Lngineers Local
Union No. 3 of the International Union of Operating Engineers, herein called the
Union.
Respondents filed an answer on July 18, 1950, admitting the nature of their
business as alleged, and the employment of Dick V. Spicher on July 7, 1949, as a
mechanic on their operations at Alturas, California, but denying the commission
of any unfair labor practices. It denied that Respondents were engaged in
interstate commerce and that the Board had jurisdiction. It also alleged the
Board was without jurisdiction to proceed in the case because of nonjoinder
of necessary parties, to wit, the Associated General Contractors of America,
herein called the AG C, and the Union.
Pursuant to notice, a hearing was held on July 18 and 19, 1950, at San
Francisco, California, before the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel and Respondents were repre-
sented by counsel, and the charging party appeared in person. All parties
participated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on
the issues.
At the outset of the hearing, General Counsel moved for judgment by default
on the complaint because of Respondents' failure to file an answer within the
time fixed by the Board's rules. At the same time Respondents moved for per-
mission to file a formal answer. The record shows that a copy of the complaint,
first amended charge, and notice of hearing were properly served by registered"
mail on Respondents at their main office in South San Francisco, California,
on April 21, 1950. Respondents offered no excuse for failure to file an answer
within time, other than the statement of their counsel, Mr. Evans, that there
had been some question up to about a week before the hearing whether he
or counsel for the Associated General Contractors of America would represent
Respondents in this case. Although it appears that Respondents were delinquent
in consulting counsel for purposes of filing the answer, the record also shows
that there were pretrial conferences between General Counsel and Mr. Evans,
representing Respondents, in the week before the hearing opened, for the purpose
of stipulating certain facts in preparation for the hearing. At the. opening of
the hearing, Respondents were represented by Mr. Evans and two of the partners,
Ed R. Guerin and Robert S. Guerin. Under these circumstances, the Trial Ex-
aminer denied the motion of General Counsel for judgment by default and per-
mitted Respondents to file their answer.
During the course of and at the close of General Counsel's case, Respondents
moved to dismiss the complaint upon the grounds that they were not engaged
in interstate commerce ; that even if they were, their operations did not have
a substantial effect on interstate commerce and assertion of jurisdiction by the
Board would not effectuate the policies of the Act ; and that the AGC and the
"Union should have been joined as necessary parties. These motions were denied,
with leave to renew at the close of the hearing. They were renewed by Respond-
ents at the close of the hearing on the grounds previously stated, and the Trial
Examiner reserved decision. The motions are now disposed of by the findings
and conclusions in this Report. Respondents also moved to strike all evidence
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adduced by General Counsel relating to the AGC, its membership, the nature andt
volume of business of its members, and the contractual relations between AGC'
and the Union ; decision on that motion was likewise reserved ; it is now denied
for reasons set forth hereafter.
All parties presented oral argument before the Trial Examiner at the close-
of the hearing, but have not availed themselves of the opportunity afforded
them to file briefs and proposed findings of fact and conclusions of law.
Upon the entire record in the case, and from my observation of the witnesses,.
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
During the year 1949 and at the time of the hearing, Respondents Robert S..
Guerin, Rayburn B. Guerin, and Ed R. Guerin were engaged in the business of-
general contracting and construction work, operating as copartners under the-
name of R. B. Guerin & Company, with their principal office located in South,
San Francisco, California, and a branch office in Cedarville, Modoc County,.
California. During the period from June 1, 1949, to June 1, 1950, Respondents-
engaged in construction work as prime contractor or subcontractor on five con-
struction operations within the State of California. The contract prices of-,
these projects aggregated approximately $745,762.37. Four of the contracts.
involved filling, excavating, grading, and development of ground in preparation.
for building construction in San Francisco and South San Francisco, California,.
and totaled approximately $62,239.80; these contracts had been completed prior
to the hearing.
The fifth project, known as the "Modoc job," was a prime contract with the
California State Department of Public Works for the clearing, filling, grading,
and drainage of 8.1 miles of California State Highway No. 28 between Tom's
Creek and Cedarville in Modoc County, California,' at a contract price of approxi-
mately $683,522.57. This operation, which constituted by far the major portion
of Respondents' business in the above fiscal period, was still in progress at the
time of the hearing. It is the only project involved in this proceeding.
In the performance of the above contracts during the fiscal period stated,.
Respondents made gross purchases totaling approximately $629,282.56. This
figure included $359,488.19 for the direct purchase of materials and equipment,
including trucks, cement, reinforcing steel, corrugated pipe, powder, gas, oil,
Diesel fuel, and related items, from sources entirely within California, and
$251,029.16 for rental of trucks, Caterpillar tractors, and other heavy equip-
ment. Respondents' out-of-State purchases were approximately $18,765.21,
which amounted to about 3 percent of their gross purchases or about 5 percent
of the total material and equipment purchases. Respondents procured all
rented equipment from dealers within the State ; approximately half of it was
rented with options to purchase which were never exercised. The rented equip-
ment comprised between 20 and 25 units valued at about $300,000; 6 of these
were new when rented and were valued between $100,000 and $150,000; most of
the new items were Caterpillar tractors which, though rented from dealers in
California, had been' almost wholly manufactured and assembled in the State
of Illinois.
' The approximate location and size of the project is Indicated by the portion of Highway
No. 28 within two pencil lines cutting the highway as shown in a red circle on map of
District II, California (Trial Examiner's Exhibit No. 1).
GUERIN & COMPANY .1703
California State Highway No. 28, involved in the "Modoc job," is a standard
two-lane paved highway which runs from Redding, Shasta County, northeast-
ward to and across Modoc County, both in California, and thence to the Nevada
State line where it connects with Nevada State Highway No. 8A. From Redding
to Alturas, California, a distance of about 145 miles, Highway No. 28 coincides
with U. S. Highway No. 299. From Alturas northward, Highway No. 28 con-
tinues as a segment of U. S. Highway No. 395 for about 10 miles, and then
branches off eastward and continues to the Nevada State line. U. S. Highway
No. 395 is a main traffic artery connecting lower Oregon, northern California,
and the western portion of Nevada. U. S. Highway No. 299 traverses the
northern part of California from the coastline to Alturas where it joins U. S.
Highway No. 395. The portion of California State Highway No. 28 between
U. S. Highway No. 395 and the Nevada line appears to be the main traffic
artery connecting Modoc County and the northeast corner of California with
the adjoining northwest corner of Nevada' 0
Since July 8, 1949, Respondents, as a partnership, have been a member of
the Northern California Chapter of Associated General Contractors of America
(AGC), a corporate organization of approximately 280 persons, firms, and cor-
porations engaged in the highway and heavy engineering construction business
in the northern part of California. The main purpose of the organization is the
improvement of conditions under which its members operate, and one of its
main functions is the negotiation and execution of labor agreements on behalf
of its members with various labor organizations. The members of the Northern
California chapter of AGC during 1949 performed about 90 percent of all heavy
engineering and highway construction in northern California, doing a gross
business in that area in excess of 150 million dollars. At least 12 of its mem-
bers' performed construction work during 1949 outside the State of California;
the Board has previously taken jurisdiction over 6 of these members 4 in pro-
ceedings under the Act.
The AGC has negotiated and executed on behalf of its members master col-
lective bargaining agreements with the Union dated May 27, 1947, May 28, 1948,
and July 15, 1949, which covered wages, hours, and other working conditions
of all employees, including heavy duty mechanics, performing work within the
recognized jurisdiction of the Union. These agreements were binding upon
the members of AGC during the periods of their operation. The agreement
of May 28, 1948, was effective on that date and remained in effect until April
30, 1949; the agreement dated July 15, 1949, became effective that date and
remained in operation until April 30, 1950,` The terms and effect of these agree.
2 The above findings are based on uncontradicated and credited testimony of Ed It.
Guerin, a summary of Respondents' transactions prepared by him (General Counsel's
Exhibit No. 2), and two maps showing northern California and adjacent territory (Trial
Examiner's Exhibits Nos. 1 and 2).
'Guy F. Atkinson Company, Bechtel Corporation, Bates & Rogers Construction Cor-
poration, Eichleay Corporation, Peter Kiewit Sons' Company, Stolte, Inc., A. Teicheft &
Sons, Inc., Utah Construction Company, J. R. Reeves, Brown-Ely Company, Midwest
Piping & Supply Co., Inc., and Foster Wheeler Corporation.
4 Guy F. Atkinson Co., 90 NLRB 143, 84 NLRB 88; J. It. Reeves and A. Teichert & Sons,
Inc., 89 NLRB 54; Brown-Ely Co., 87 NLRB 27; Midwest Piping and Supply Co., Inc.,
54 NLRB 744, 63 NLRB 1060; Foster Wheeler Corporation, 79 NLRB 1062.
8 The above findings as to the AGC are based on uncontradicted and credited testimony
of Winfield H. Arata, the 1950 membership roster of the Northern California chapter of
AGC (General Counsel's Exhibit No. 5), and the AGC-Union collective bargaining agree-
ments of May 28, 1948, and July 15, 1949 (General Counsel's Exhibits Nos. 3 and 4).
The two labor agreements were also signed by officers of the Central California chapter,
of AGC, which is comprised of persons, firms, and corporations engaged in building con-
struction, as distinguished from highway and heavy construction, in northern California,.
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments will be considered further in the discussion of the discharge of Dick W.
Spicher.
On the above facts Respondents argue that (1) the Board is without juris-
diction because they are not engaged in interstate commerce; and (2), if engaged
in such commerce, their operations have so slight an effect on that commerce
that the assertion of jurisdiction by the -Board would not effectuate the policies
of the Act. I do not agree with this contention. Respondents' out-of-State
purchases of over $18,000, their rental of equipment valued at over $100,000,
which had its origin in another State, and the fact that during 1949 and 1950
over 90 percent of their business consisted of the reconstruction of a substantial
part of a main traffic artery connecting California and Nevada which also com-
prises a substantial portion of a network of U. S. highways linking California
with Oregon and Nevada, all indicate that Respondents'. operations in that period,
particularly on the "Modoc job," had a substantial connection with interstate
commerce. It is clear that a labor dispute and possible stoppage of work on,
the reconstruction of State Highway No. 28 would have deprived persons and
firms travelling in interstate commerce between northern California and Nevada
of the use of the main artery of traffic between those States at that point. The
Board has recently taken jurisdiction over other general contractors engaged
locally in road construction who did less business and had less out-of-State
purchases than Respondents. Brown-Ely Co., 87 NLRB 27; J. R. Reeves and A.
Teichert & Sons, Inc., 89 NLRB 54. In those cases the -employers were involved,
among other work, in the construction of U. S. highways. Although Respondents
were not working directly on a U. S. highway for the Federal Government, I see
no less reason for the assertion of jurisdiction here, since over 90 percent of
Respondents' operations involved a State highway which is not only a segment
of a network of U. S. highways, but also the main artery of interstate traffic
connecting that network in northern California with the State of Nevada.
General Counsel offered the evidence of the organization and functions of the
Northern California chapter of AGC, its contractual relations with the Union
and Respondents' membership in AGC, solely on the question of jurisdiction, to
show that a labor dispute involving Respondents and the Union would have a
direct effect upon the over-all labor relations between the members of AGC
and the Union, and a consequent impact upon interstate commerce. General
Counsel disclaimed any intention to show by this proof a common labor policy
of AGC. and the Union as motivating the discharge involved here. Respondents
therefore argue that this evidence is immaterial and should not be considered on
the question of jurisdiction alone, that it can only be considered by the Board
for that purpose if offered to show a common labor policy of the parties and AGC,
in which event AGO and the Union are necessary parties to this proceeding. On
this theory, Respondents moved to strike the evidence in question and also to
dismiss the proceedings for nonjoinder of AGC and the Union. The motion
based on nonjoinder of parties will be considered in the discussion of the merits
hereafter. I consider the evidence in question relevant and material for the
following reasons : The operations of the members of the Northern California
chapter of AGC outlined above, both within and without the State of California,
clearly have a substantial effect upon interstate commerce. Furthermore, al-
though Respondents' membership in AGC became effective July 8, 1949, the
very day of the alleged illegal discharge of Spicher, it appears from the un-
contradicted testimony of Respondent Ed R. Guerin that Respondents' predecessor
firm, Guerin Brothers, in which he had also been a partner,-was a member of
AGC for many years past, during which time Ed R. Guerin himself .had taken
GUERIN & COMPANY 1705
part in numerous negotiations of collective bargaining agreements ;between AGC
and the Union. These facts indicate a continuing identity of interest between
Respondents and their predecessor firm and AGC, in their relations to the Union,
which antedates the events of July 1949 alleged in the complaint. Finally, in
the bargaining period between April 30, 1949, the termination date of the 1948
master agreement between AGC and the Union, and July 15, 1949, the effective
date of the new contract, a labor dispute between a member of AGC and the
Union might impede the progress of the negotiations and consummation of the
new master contract, which would have a direct effect on the over-all labor
relations of the AGC and its members and could lead to a labor dispute causing
widespread interruption of the operations of its members.
Respondents' argument also involves a non-sequitur. I know of no rule of
evidence or administrative procedure which requires General Counsel to offer
this proof on the main issue of causation of the discharge, to support a theory
not asserted by him, before the Board can consider the proof on the preliminary
issue of jurisdiction. In other words, before offering this evidence to show
that a labor difficulty of one member of AGC may have a wide impact on the
broad relations of its members with the Union, General Counsel is not required
first to offer the evidence to prove, in reverse, that the over-all AGC-Union
relationship, and any common labor policy of AGC members arising therefrom,
was the cause of the discharge. Once evidence relevant and material on one
point has been received, it can be considered by the board if relevant and material
on any other aspect of the case. In this connection, the significance of the
contracts between AGC and the Union, and Respondents' interpretation of them,
will be considered below in relation to the discharge of Spicher. Respondents'
motion to strike the above evidence is therefore denied.
On the basis of all the foregoing facts and considerations, I find, contrary to
Respondents' contention, that Respondents are and have been engaged in inter-
state commerce, and that the assertion of jurisdiction over their operations
would effectutate the policies of the Act'
II. THE LABOR ORGANIZATION INVOLVED
Operating Engineers Local Union No. 3, of the International Union of
Operating Engineers, is a labor organization within the meaning of Section 2
(5) of the Act, which admits to membership employees of Respondents.
III. THE UNFAIR LABOR PRACTICE
The single issue in the case is whether Respondents discharged Dick W.
Spicher from their employ on July 8, 1949, because he did not have a clearance
from the Union.
Dick W. Spicher, a resident of Klamath Falls, Oregon, came' to work for
Respondents on the "Modoc job" on July 6, 1949, as a heavy-duty mechanic.
That work involves the major overhaul and repair of heavy transportation and
construction equipment such as Caterpillar tractors, bulldozers, excavating
shovels, and trucks of various types. Overhaul and repair of such equipment
requires the disassembly and assembly, with replacement of parts, of transmis-
:sions, rear ends, motors, final drives, and other components.
Spicher came down to the Modoc job at the request of one Murien, of Murien
and Cox, subcontractors of a portion of the clearing work on the project. This
firm was using two Caterpillar tractors for the clearing work, and in the course
6 See cases cited above, and Strong Company, 86 NLRB 687.
929979-51-vol. 92-109
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, Murien had asked Respondents to have one of the tractors overhauled
by their mechanics. Murien became dissatisfied with the work of that mechanic,
whereupon Ed. R. Guerin told him to find a mechanic satisfactory to him,
arranging to hire the man chosen by Murien and charge Murien and Cox for his
labor and the cost of parts and materials used in the overhaul. Murien then
contacted Spicher through a mutual acquaintance and asked him to come ' to
work on the job, advising Respondents' field office of his choice. An office
employee of Respondents called Spicher on July 5, 1949, advising him to come
to Cedarville at once, saying they needed him, and also advising that Respond-
ents had already cleared him with the Union for work on the job. When Spicher
reported for work at the field office at Cedarville on the afternoon of July 6th,
Murien met him and took him into the field office, where an employee of Re-
spondents had him sign some paper for Respondents' records. Spicher did not
work that afternoon, but reported for work the next morning, July 7, at the
shop, where he was assigned by Lloyd Martin, master mechanic of Respondents,
to go out on the project to overhaul equipment. He went out on the job with
his tools and worked on Murien's tractor and other equipment that day.
When Spicher reported for work July 8, 1949, Martin told him to come back
to work on the evening shift, starting at 3: 30 p. in. When he returned in the
afternoon to start that shift, he met one Archibald, business agent of the
Union, outside Respondents' -shop and office, and had a discussion with him.
At the outset of the conversation, Martin, who was a member of the Union,
was inside the shop, only a few feet away. Archibald asked Spicher if he
had his union book and clearance from the Union. Spicher replied that he
did not have his book with him, and that he had been cleared with the Union
through Respondents' office. At that moment Martin came up to them, and
Archibald asked Martin if he had seen Spicher's clearance. When Martin
said he had not, Archibald then told Spicher he could do nothing for him, stating
he had men at the union office waiting for jobs. Spicher asked Martin if, be
wanted Spicher to work that night. Archibald then asked Martin, "Can you
get along without him?" and Martin said, "Yes," and as he and Archibald walked
away together, Martin told Spicher, "I guess I can't use, you, then." Spicher
did not work that night, but was paid off for his work on July 7, 1949, and
then left the job.'
Spicher has not worked for Respondents since July 8, 1949. Respondents
made him an unconditional offer of reinstatement on September 21, 1949.
Respondents claim that Spicher was hired by mistake, that he was not a
qualified heavy-duty mechanic, and that he left the job of his own accord on
July 8, 1949, either because he discovered he could not do the work, or because
of some compulsion from the Union. In support of its claim of a mistaken
hiring, Ed R. Guerin testified that he and Murien found Spicher working on- one
of Murien's tractors (apparently on July 7) and Murien indicated he had never
seen Spicher before, and asked Spicher "where the other man was," to which
7 The findings of the above events and conversation are based upon the credible testimony
of Spicher . Archibald did not testify in the case . I do not credit the denial of Martin
that he heard any of the conversation or that he discharged Spicher : he admitted that he
was close by during the conversation, and that he had been told by Archibald earlier that
day that he was employing Spicher , a nonunion man, on the job; his manner of testifying
and attitude on the stand was evasive and not straightforward ; much of his testimony was
vague and equivocal , and some of it self-contradictory ; and in general his testimony was
lacking in candor and other Indicia of veracity . I therefore consider his testimony gen-
erally untrustworthy and do not give it credence in this report except to the extent that it
contains admissions consistent with other testimony credited herein.
GUERIN & COMPANY 1707
Spicher replied that the other man got his old job back and sent Spicher in
his place. I reject this testimony because I have already found, on the basis
of Spicher's credible testimony, that he had talked to Murien about the job
beforehand, and that Murien met him when he first arrived at the project and
saw to it that he was signed up by Respondents. This finding is supported by
the significant fact that Guerin, in his version of the meeting between Spicher
and Murien, did not indicate that either he or Murien objected to Spiclher's.
continuance on the job, nor that Murien, who was a "pretty fussy bird" about
the overhaul and care of his tractors, scrutinized or criticized Spicher's work..
Murien was not called by Respondents to testify. It is clear from all the evi-
dence on this point, and I find, that Spicher was not a stranger to Murien on
July 6, 1949, that Murien brought Spicher down to the job, and that there was no
mistake about his employment.
In support of the claim that Spicher was not a qualified mechanic, Martin,
the union master mechanic, testified that he checked on Spicher's work occa-
sionally during the day that he was on the job, and decided that Spicher was
not a capable mechanic. I consider Martin's testimony on this point as unworthy
of any credit. Although he claimed to have had 30 years of experience in work
on heavy equipment, he could not recall a single detail about Spicher's work
which was wrong; when questioned by the Trial Examiner on this point, he
took refuge in vague statements, such as that Spicher was not doing the work in
a "workmanlike manner," that his "methods were wrong," and the like. He
attributed his inability to recall details of Spicher's operations on July 7th to
the fact that "it has been too long" ; yet he was able to recall and quote his
exact conversation with Archibald, the agent of his Union, about Spicher which
occurred the very next day, July 8th. Moreover, although Spicher appeared to
him to be incapable of doing the work, Martin never talked to him about his
ineptitude, nor took any steps to correct his "wrong" methods. Martin grudg-
ingly admitted, on the other hand, that Spicher did some parts of his work
"fair," and that he appeared qualified to do some phases of the work of heavy-
duty mechanic. Respondents also rely on Spicher's admitted errors in describing
details of the type of tractors which he overhauled for them, but I consider
this of no significance in the face of Spicher's own credible testimony as to his
experience of over 16 years as a heavy-duty mechanic in which time he had
worked on all types of heavy construction and transportation equipment ; his
failure to remember details of a particular type of tractor on which he had not
worked for some time does not detract from the general credibility of his testi-
mony. On the basis of all the evidence on this point, I am satisfied, and therefore
find, that Spicher was qualified to do the work assigned to him by Respondents,
and that he did not leave the job because of his inability to do the work.
The contention that Spicher left the job because of some compulsion by the
union agent , Archibald, exerted directly on Spicher, is not supported by the record
and is completely refuted by the substantial testimony of Spicher, corroborated
by the admissions of Guerin and Martin, which have been discussed above.
Respondents claim that Spicher's testimony as to the circumstances of his
discharge is inherently incredible, and that at most it proves only that he walked
off the job after a talk with the union agent. I have already resolved the issue
of credibility by the findings made above. However, if I had any doubt about
whether Respondents discharged Spicher and the reason therefor, it is set at
rest by certain admissions of Respondent Ed R. Guerin and the master mechanic,
Lloyd Martin, which not only support Spicher's testimony, but also clearly estab-
lish that he was discharged by Respondents in accordance with a discriminatory
hiring policy pursued by them on the Modoc job.
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ed R. Guerin was called as an adverse witness by the General Counsel. At
first he repeatedly stated that Respondents did not know or care whether their
employees on the Modoc job did or did not belong to the Union, and that it was
not their policy to hire only persons approved by the Union. When. confronted
with a letter he sent to the Board stating Respondents' version of the discharge,
however, he admitted that their policy on the job was to hire only men cleared
by the Union and that, in order to prevent a work stoppage by union men on
the job, Respondents would not keep a man who was not cleared by the Union.
Thus, after Spicher's discharge and when the Regional Office of the Board wrote
Respondents a letter dated July 25, 1949, requesting Respondents' version of the
discharge, Guerin had Respondents' bookkeeper on the job investigate the circum-
stances and prepare a reply to the Board under date of July 28, 1949, which
Guerin signed and sent 8 This letter states, in pertinent part :
To the contrary, Mr. Spicher was not discharged upon the authority or insti-
gation of our master mechanic nor by any partner of the company but was
informed personally by the business representative of Local No. 3, Operating
Engineers of Redding that he could not work on this or any other project
unless he was reinstated and became a member in good standing. We were
likewise told by this representative that we could not keep this man on the
job in violation of our contract as per agreed by the Associated General Con-
tractors of America, Incorporated of which we are a member. This Asso-
ciation represents all contractors and negotiates all contracts with the Labor
Unions entailing all types of crafts. Furthermore, it is our understanding
that we must employ union members in good standing or those willing to
become affiliated with a union or else have the unions pull their members off
the project. [Emphasis supplied.]
When asked by General Counsel to explain the last underlined sentence quoted
above, Guerin testified:
A. It was up to the Union delegate to sign them up and give them permits
or ask them to join the Union, which happened in many cases up there. It
is happening right now up there.
Q. Well, was it your policy if the Union refused to clear a new employee
that you would then refuse to hire him or keep him on your payroll?
A. It was agreed when we went on the job that they would clear anyone
that was competent enough to handle a job up there. I am talking about
carpenters or catskinners or shovel crews or greasemonkeys or mechanics-
any of the crafts that we had to have to accomplish the job.
Q. Well, on your part was it your agreement that you would employ' only
those who were cleared by the Union?
A. Yes. What else could we do, if they would pull their regular members
off? We had a hundred and fifty, two hundred people up there.
Q. Was this policy made known throughout the operation to your
supervisors?
A. Absolutely.
When he was questioned further about the preparation of the letter by the Trial
Examiner, he testified :
Trial Examiner FREY. Who gave him the orders to write it?
The WITNESS. Well, I think there was some sort of a citation came in and
it was all written up and he said, "I think I have got it pretty generally
8 General Counsel's Exhibit No. 6.
n
GUERIN & COMPANY 1709
briefed out" and he wrote it and I just glanced through it. and signed it.
Now, I believe I'd do it again. I don't see anything wrong with it. We are
under contract up there, have a penalty for completion and everything else
and Number one is to have good help and plenty of help and no beefs with
anybody, Unions or anybody else.
a s a s s - s r
By Mr. BAMFORD :
Q. Wasn't it the usual arrangement between you and the Operating
Engineers that if you hired a new man not through the' Union but on your
own that that man would join the Operating Engineers,
A. Yes, ultimately. They were tickled to death to do that.
Trial Examiner FREY. Did you ask them to or order them to join under
your old hiring and training practices?
The WITNESS. No, we didn't care whether they joined or not, but what are
you going to do, Mr. Examiner, when just for the sake of one individual prob-
ably a hundred men will walk off the job. That makes it pleasant too, you
know. You can't swim upstream in this business, but we wouldn't individ-
ually insist on anybody belonging to the Union ; but it wasn't any of our
business. Ordinarily, I have never heard of a case where a man had an
opportunity to go in the Union-I have never heard of any case where they
weren't willing to go in, so that would relieve us of any further beef on it.
• s s s s s s
By Mr. BAMFORD :
Q. Wasn't it the understanding up there in that Cedarville job, Mr.
Guerin, that all the heavy duty mechanics had to belong to the Operating
Engineers or else get cleared by them?
A. Get cleared, I will go for that, yes.
When he was asked by the Trial Examiner to explain his statement, "you can't
swim upstream in this business," he testified as follows,:
Trial Examiner FREY : What did you mean by that statement?
The WITNESS. I meant this : in other words, I believe it came about
through asking me questions about how long I had been in the business, in
the contracting business, and I said I was in before the Union got really
heavy, and I believe in the last World War they came in very much to
prominence, and naturally all of our jobs-we would like to have them go
along peacefully and finish them on time, and that is why I meant we couldn't
swim upstream. We had to go along with the trend.
Trial Examiner FREY. You mean you had to do what the Unions wanted?
The WITNESS. Pretty near.
Trial Examiner FREY. Does that mean, then, that you were afraid that if
one individual were kept on the job the Union would take some action
against you?
The WITNESS. Well, that is possible.
Trial Examiner FREY. Well, is that what you mean by that statement
there?
The WITNESS. Yes, I will say that is what I meant, yes.
s s s s s s s
By Mr. BAMFORD :
Q. I am asking what your policy was ; not how many members there were
up there. Wasn't it your policy up there that everybody, all of your heavy
1 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,duty mechanics and your operators too, I suppose, had to be organized with
Local 3?
A. Well, sure.
Q. And that policy was made known to your supervisor ; is that correct?
A. Certainly. They were all Union men, too.
Q. And your master mechanic, Lloyd Martin, was a supervisor?
A. That is correct.
Trial Examiner FREY. Was he a Union man?
The WITNESS. Yes.
It is clear from the record that Martin had the power to hire and discharge
employees.
When Guerin testified for Respondents, he stated that when he signed the letter
of July 28, 1949, to the Board Regional Office, he assumed there was a valid exist-
ing contract between AGC and the Union. Before sending the letter he discussed
it with his counsel, and regarding that discussion he testified :
By Mr. BAMFORD :
Q. In your conversation with Mr. Evans, did you discuss the matter of
whether or not there was a contract between Operating Engineers Local 3
and the AGC?
A. Well , I assumed that he would know that. In other words, we had
been getting help and mechanics and operators out of that local ever since
it was formed, and I don't believe that that phase of it I mentioned to him.
Q. And by "getting help and operators" out of the local, you mean that
there was a contract, you thought that there was a contract?
A. Yes.
Q. Not only at the time that the letter was written but at the time that
Spicher was terminated from your company; is that correct?
A. Oh, yes. In fact, I have sat in on the beefs, some of the beefs between
the union and the contractors. Of course, this is a new firm that we
started, this R. B. Guerin and Company, recently, but I was a member of
the firm of Guerin Brothers and we were a charter member of the AGO
for many years, and we would sit in with the different unions on working
out working conditions, wage scales, and I presumed that we were within
a contract at that time.
Q. And the contract provided that you had to employ union members in
good standing or those willing to become affiliated with the union ; is that
correct?
A. I understood, with the contract, that a man had ninety days to join
the union, and I think that is the policy that we followed up there. I believe
I have read the Wagner Labor Act, and at that time I don't think I did
have a copy of the Taft-Hartley Act.
It is clear from the record that there was no binding collective bargaining
contract in existence between AGC and the Union on July 8, 1949, when Spicher
was discharged. • The master agreement of May 28, 1948, between AGC and
the Union,9 with which Guerin was undoubtedly familiar, provided in Section
3 thereof:
In the hiring of employees covered by this agreement, preference shall
be given by the Employer and the individual employers covered hereby to
persons who have been employed in Northern California between May 1, 1947
a General Counsel's Exhibit No. 3.
GUERIN & COMPANY 1711
and May 31, 1948 on any work covered by the AGC Master Agreement dated
May 29, 1947 by any individual employer covered by this Agreement.
Whenever any individual employer needs men, he shall post a written
notice on his job bulletin board and shall notify the Union at the same
time, which notice shall be given at least forty-eight (48) hours before
the men are needed on the job, whenever possible. For the purposes of
this paragraph it shall be sufficient that such notice be given to the Union
office in the area in which the job is located. Upon such notice being given,
the Union agrees that it will furnish an adequate supply of competent em-
ployees if they are available.
The Collective Bargaining Representatives agree that, if and when a
union security clause can lawfully be written into this agreement, they
will then promptly enter into negotiations concerning hiring and union
security clauses. If and when hiring and/or union security clauses are
written into this agreement pursuant to such negotiations, then this sec-
tion shall forthwith become inoperative.
Section 3 of the master agreement effective July 15, 1949, between the same par-
ties contained an identical provision, with the exception of an additional refer-
ence to the previous agreement of May 28, 1948.'° It does not appear from the
record that either of these agreements had been authorized under the proviso
to Section 8 (a) (3) of the Act. However, since neither of them was in effect
at the time of Spicher's discharge, the exact effect and meaning of the hiring
provisions quoted above are immaterial in this proceeding. The agreements
themselves are relevant and material only to the extent that Respondents' in-
terpretation of their hiring provisions indicated the hiring policy that Respond-
ents followed in the hiring and subsequent discharge of Spicher. Guerin's testi-
mony quoted above clearly indicates that he thought one of those contracts was
in effect on July 8, 1949, and that under his interpretation of it Respondents
were required to hire only heavy-duty mechanics who were cleared by the
Union and, as a corollary, that they could not retain in their employ any such
workmen not cleared by the Union, under pain of a work stoppage or strike.
The testimony of Martin also indicates that this policy was in effect when
Spicher was hired. Martin admitted that an agent of the Union visited the
project regularly once a month to clear any nonunion workmen whom Respond-
ents had hired, and that all Respondents' employees on the job were union men
when hired, or signed up with the Union within 90 days. I do not credit his or
Guerin's testimony as to the 90-day clearance, however, as neither of the con-
tracts upon which Respondents relied contained such a provision; and it was
not applied in the case of Spicher, the only man not cleared by the Union. I
likewise reject Martin's testimony that the Union had agreed to clear all non-
union men hired by Respondents on the Modoc job because help was scarce:
the facts found above indicate that this procedure was not followed in Spicher's
case; and while Martin intimates that the Union refused Spicher a clearance
because he was not a qualified mechanic, that excuse falls because Respondents
expressly disclaim that they discharged Spicher because he was inefficient, and
there is no proof in the record that the union agent was told by Respondents,
or otherwise knew, of Spicher's alleged lack of qualifications.
After careful consideration of all the pertinent testimony in the record, I am
convinced that the preponderance of credible evidence shows, and on the
basis thereof I conclude and find, that Dick W. Spicher was discharged by
10 General Counsel's Exhibit No. 4.
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents on July 8, 1949, because he was not cleared for work on the Modoc
project by the Union, and that by such discharge Respondents discriminated
against Spicher in regard to his hire or tenure of employment and the terms or
conditions of his employment, in order to encourage membership in the Union,
and thereby violated Section 8 (a) (3) of the Act. By such discrimination
against Spicher, Respondents also interfered with, restrained, and coerced their
employees in the exercise of rights guaranteed to them by Section 7 of the Act,
in violation of Section 8 (a) (1) of the Act.
The Nonjoinder of Parties
In its answer and at the hearing Respondents moved that the complaint be
dismissed for nonjoinder of AGC and the Union as necessary parties, on the
theory that introduction of testimony by the General Counsel as to labor rela-
tions between AGC and the Union indicated that General Counsel was attempting
to prove the discharge of Spicher was the result of a common labor policy of
AGC and its members (including Respondents) with the Union, and on that
basis both AGC and the Union should have been charged with violation of the
Act and made parties in this case. In addition, Respondent contended, particu-
larly on the basis of its letter of July 28, 1949, to the Board, that the Union, and
not Respondents, was responsible for the discharge.
These arguments misconceive the basis of the complaint. The only charges
before the Board on this record are against the Respondents, and on the basis
thereof the complaint only charges Respondents with a violation of the Act.
The complaint does not allege, and General Counsel did not claim or attempt to
prove, that the discharge was the result of the application of a common labor
policy by AGC and its members. Nor does the complaint charge a violation of
8 (b) of the Act.
Under the Act the Board is empowered to find unfair labor practices and to
issue a remedial order only against parties named in the complaint, and where
no charge is filed and no complaint issued against another party, it is without
power to issue an order against such other party.11 The record in this case
does not disclose whether charges have been filed or complaints issued against
parties other than Respondents. Under these circumstances , the Trial Examiner
has no power to require General Counsel to change the theory of his complaint
or add an additional cause of action which would require the presence of AGC
and the Union, either to relieve Respondents of their liability for the discrimina-
tion found above, or to make others share that liability. .On this state of
the pleadings and the record, the remarks of the Board in Carpenter and Skaer,
Inc., and General Contracting Employers Association, 90 NLRB 417, relied upon
by Respondents, are not pertinent in this case. The motion of Respondents
to dismiss the complaint for nonjoinder of parties is therefore denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondents 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.
11 Cf. General Electric X-Ray Corporation., 76 NLRB 64; E. L. Bruce Company, 75
NLRB 522.
GUERIN & COMPANY
V. THE REMEDY
1713
Having found that Respondents have engaged in certain unfair labor prac-
tices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act, I will
recommend that Respondents cease and desist therefrom and take certain affirm-
ative action in order to effectuate the purposes and policies of the Act.
I have found that Respondents discriminatorily discharged Dick W. Spicher
on July 8, 1.949, because he failed to secure a clearance from the Union. Since
Respondents made an unconditional offer of reinstatement to Spicher on Septem-
ber 21, 1949, I will not recommend that any further offer be made. However,
I will recommend that Respondents make Dick W. Spicher whole for any loss
of pay he may have suffered by reason of Respondents' discrimination against
him. It is recommended that his loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from Respondents'
discriminatory action to September 21, 1949, the date of Respondents' offer of
reinstatement; the quarterly periods, hereinafter called "quarters," shall begin
with the first day of January, April, July, and October. Loss of pay shall be
determined by deducting from a sum equal to that which Spicher would normally
have earned for each quarter or portion thereof, his net earnings," if any, in
other employment during that period. Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter. It is also
recommended that Respondents be ordered to make available to the Board upon
request payroll and other records to facilitate the checking of the amount of
back pay due."
Although it has been found that Respondents discriminatorily discharged only
one employee in violation of Section 8 (a) (1) and (3) of the Act, and no other
violations have been alleged, proven, or found, the nature of the unfair labor
practice found, the circumstances under which it occurred and the entire record
in the case in my opinion discloses an intent and purpose by Respondents to
interfere generally with the rights of employees guaranteed by the Act, and
convinces me that the' unfair labor practice found is persuasively related to
other unfair labor practices proscribed by the Act, and that danger of their
commission in the future is to be anticipated from Respondents' course of con-
duct in the past." The preventive purposes of the Act will be thwarted unless
the order is coextensive with the threat. Therefore, in order to make more effec-
tive the interdependent guarantees of Section 7 of the Act, to prevent a recur-
rence of unfair labor practices and thereby minimize the industrial strife which
burdens and obstructs commerce and thus effectuate the policies of the Act,
I will recommend that Respondents cease and desist from in any other manner
interfering with, restraining, and coercing their employees in the exercise of
rights guaranteed by Section 7 of the Act.
On the basis of the above findings of fact and upon_the entire record in the
case, I make the following :
-12 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for Respondents, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Crossett
Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State,
county, municipal, or other work-relief projects shall be considered as earnings. See
Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
'IF. W. Woolworth Company, 90 NLRB 289.
14 See N. L. R. B. V. Entwistle Manufacturing Company, 120 F. 2d 532 (C. A. 4).
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Operating Engineers Local Union No. 3 of the International Union of Oper-
ating Engineers , is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Dick
W. Spicher , thereby encouraging membership in the above labor organization.
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination , thereby interfering with , restraining, and coercing
their employees in the exercise of the rights guaranteed in Section 7 of the Act,
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]