The Hunkin-Conkey Construction Co.

National Labor Relations Board - Board Decisions

Jul 23, 1951

95 N.L.R.B. 433 (N.L.R.B. 1951)

THE HUNKIN-CONKEY CONSTRUCTION COMPANY 433
THE HUNKIN-CONKEY CONSTRUCTION COMPANY and STEWART LEROY
LIGHTFOOT
HOISTING, PORTABLE, SIIOVEL ENGINEERS' AND FIREMEN'S LOCAL
UNIONS Nos. 18, 18-A, 18-B, 18-C, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL and STEWART LEROY LIGHTFOOT.
Cases Nos. 8-CA-30 and 8-CB-35. July 23,1D51
Decision and Order
On March 2, 1951, Trial Examiner James A. Shaw issued his Inter-
mediate 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
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, a supporting brief, and
it motion to reopen the hearing.' The General Counsel filed a brief
in support of the Intermediate Report
The Board 2 has reviewed the rulings made by the Tria l Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the -Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recommen-
I The Respondents ' motion to reopen the hearing is based upon the ground that they
have evidence which shows that no credence can be given to the testimony of certain
witnesses credited by the Trial Examiner. It is clear that the proffered evidence was
available at the time of the hearing and is not newly discovered . Under the circumstances,
the motion is hereby denied as untimely . See Metropolitan Life Insurance Company,
91 NLRB 473.
2Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Reynolds and Murdock].
z The Intermediate Report contains certain misstatements of facts and inadvertences.
none of which affects the Trial Examiner ' s ultimate conclusions or our concurrence in
such conclusions . Accordingly , we make the following corrections : ( 1) The General
Counsel moved to amend the complaint ill Case No. 8-CB-35 and not 8-CA-35 as
indicated by the Trial Examiner : ( 2) ruling on the Respondent 's motion to dismiss the
complaints as amended was not reserved by the Trial Examiner , but was denied without
prejudice to renewal of motion at the close of the hearing ; ( 3) the Trial Examiner finds
that the Respondent Company is engaged in commerce within the meaning of Section 2
(5) of the Act. The correct section is 2 (6) : and (4) the Trial Examiner states that
Lightfoot and his wife denied Rutherford ' s testimony in its entirety . The record shows
that only Lightfoot made such a denial : ( 5) the Trial Examiner says that on December
8, 1949 , Lightfoot was in the Unions ' office in Canton , Ohio, and met with Burchfield.
According to the record , while Lightfoot did go to the Unions ' office on that day and did
meet Burchfield , these events did not occur at the same time . He met Burchfield in a.
tavern and later went to the Union ' s office : (6 ) the Trial Examiner states that Sheets
admitted at the hearing that Burchfield ordered him to discharge all employees who were
not present at the meeting of December 4, 1949, unless they had an excuse. The record
discloses that Sheets state (] that he (it(] not remember whether Burchfield so ordered him.
95 NLRB No. 56.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dations of the Trial Examiner, with the following modifications and
additions :
1. The Trial Examiner found that the Respondent Company .and
the Respondent Unions verbally agreed that the Respondent Company
would hire only union members or those who were "cleared" through
the Unions' offices and that by such conduct and by carrying out the
terms of the "agreement" whereby preference in employment was
given to union members the Respondent Company violated Section
8 (a) (1) and 8'(a) (3) of the Act and the Respondent Unions violated
Section 8 (b) (1) (A) and 8 (b) (2). We do not agree with the
Trial Examiner's factual findings and, accordingly, find no basis for
his ultimate conclusions on this subject.
The Trial Examiner premises his finding of an agreement between
the Respondents that employees needed for the Bowerston job would
be hired and "cleared" through the Unions' office, upon certain testi-
mony of Erwin, vice president and secretary of the Respondent
Company, Sheets, master mechanic on the Bowerston job, and one
McElhaney, a witness called by the General Counsel. As indicated
by the Trial Examiner, Erwin testified that the Unions were the gen-
eral sources of supply for hiring employees. However, he further
stated that it was the general policy of the Respondent Company
when commencing a new job to utilize all available services for recruit-
ing its help, including employment bureaus, advertisements in news-
papers, and the local unions. Sheets, who had authority to hire and
fire on the job, testified that while he called the Unions from time to
time when jobs were available, he nevertheless was not required to do
so and in fact had hired nonunion members at the job site without
consulting the Unions. Unlike the Trial Examiner, we are unable to
discern any inconsistency between this testimony of Sheets and his
statement in his affidavit that "When we need a new operator em-
ployee, I contact the Canton office of Local 18, District 7, International
Union of Operating Engineers and tell them what type of employee
we need." The two statements are not mutually exclusive. His state-
ment in the affidavit shows what his customary procedure was in
securing new employees, but it is not incompatible with his testimony
at the hearing that he sometimes did not hire through the Unions'
offices. .
McElhaney's testimony, credited by the Trial Examiner, was that
when he sought a job at Bowerston, Sheets told him that the Company
"get all their men out of the Union Hall in Canton." In our opinion,
this is the only evidence which directly supports the Trial. Examiner's
finding. However, we are not persuaded that one such statement
made to a union member is sufficient to warrant a conclusion that an
agreement existed between the Respondent Company and the Re-
• THE HUNKIN-CONKEY CONSTRUCTION COMPANY 435
spondent Unions that hiring of employees for Bowerston would be
done only through the Unions' offices. Moreover, assuming arguendo
that the Respondent Company and the Respondent Unions had en-
tered into such an agreement, we have not found a provision that per-
sonnel be secured through the offices of a union violative of the Act,
absent evidence that the union unlawfully discriminated in supplying
the company with personnel .4
While the Trial Examiner found that by carrying out the terms of
the "agreement" preference in employment was given to union mem'-
bers, we do not believe that the record in this case supports his
conclusion. Thus, the uncontradicted testimony of Converse, presi-
dent of the Respondent Unions, was to the effect that the Unions'
practice was to accept applications for employment from anyone
seeking a job whether he was a union or nonunion member; and that
referral or work order slips were issued to both members and non-
members. Burchfield, district representative of the Respondent
Unions, stated that he never attempted to give union members prefer-
ence in filling jobs for the Respondent Company; that applications of
union and nonunion members were kept in the same file ; that the appli-
cations of nonmembers were never pulled out of the file and set aside
so that nonmembers would not have the same job opportunities as
union members; and, that after the applications were made out, they
were kept on file, and the men were called in their turn.
Moreover, the record clearly establishes that at least seven non-
members were supplied to the Respondent Company for its Bowerston
job by the Respondent Unions,,, and that without objection one non-
member was hired at the job site for work within the jurisdiction of
the Unions and two nonmember employees were transferred to similar
work. In answer to a question by the General Counsel as to whether
he would give preference first to unemployed union men, Burchfield
' Pacific American Shipowners Association (National Union of Marine Cooks and
Stewards, affiliated with the Congress of Industrial Organizations), 90 NLRB 1099;
Missouri Boiler and Sheet Iron Works, 93 NLRB 319; Firestone Tire and Rubber Company
(International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Over-the-road and City Transfer Drivers, Helpers, Dockmen and Warehousemen,
Local Union No. 41, A. F. L.), 93 NLRB 981 ;.The Texas Company, et al. (National Maritime
Union of America), 78 NLRB 971.
5 We disagree with the Trial Examiner that a practice of giving preference to members
over nonmembers is well illustrated by the fact that out of 127 employees furnished by
the Respondent Unions 7 were nonmembers. On the contrary, giving due consideration
to the nature of the construction industry in which short-term jobs in different localities
are customary, the character of the Operating Engineers which is principally a craft union,
and the fact that most people performing the kind of work involved herein would probably
be union members, we believe that evidence of 7 nonmembers being supplied to the
Respondent Company by the Unions is, if anything, persuasive to show lack of any
discriminatory practice. Nor is there a scintilla of evidence in the record to substantiate
the Trial Examiner's speculation that these 7 employees might have been assigned to
menial jobs, such as laborers and the like, and not to the skilled crafts which employees
constituted the bulk of the Union's membership.
961974-52-vol. 95-29
436 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
replied, "Naturally." The Trial Examiner concludes that this testi-
mony amounted to a statement by Burchfield that union members were
in fact given preference. We are not convinced that the Trial Ex-
aminer correctly gauged the true import of Burchfield's testimony.
It could well be, in view of the language in which the question was
couched, and particularly in light of his other testimony and that of
Converse, that Burchfield was merely indicating what he personally
would like to do and not what actually was done. Furthermore, even
if we were to adopt the Trial Examiner's interpretation of Burch-
field's testimony in this regard, we are not prepared to find a dis-
criminatory practice based upon an isolated statement of this type
without at least some evidence of the practice to support it.e
Upon the basis of the record as a whole, we reverse the Trial Ex-
aminer's finding that the Respondent Company and the Respondent
Unions violated the Act by agreeing to and making an unlawful hiring
arrangement.
2. The Trial Examiner found, and we agree, that Lightfoot was
discharged by the Respondent Company at the request and demand
of the Respondent Unions for failure to attend a union meeting on
December 4, 1949,7 and that by such conduct the Respondent Com-
pany violated Section 8 (a). (1) and 8 (a) (3) of the Act, and the
Respondent Unions, Section 8 (b) (1) (A) and 8 (b) (2) of the Act.8
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
.
I. The Respondent, The Hunkin-Conkey Construction Company,
Cleveland, Ohio, its officers, agents, successors, and assigns, shall:
A. Cease and desist from :
(1) Encouraging membership in Hoisting, Portable, Shovel En-
gineers' and Firemen's Local Unions Nos. 18, 18-A, 18-B, 18-C, Inter-
national Union of Operating Engineers, AFL, or in any other labor
organization of its employees, by discharging any of its employees
or discriminating in any other manner with respect to their hire or
8 There is no showing here that any nonmember was denied clearance . for a job by
the Unions.
IIn making this finding we do not rely upon the Trial Examiner's statement that
before discharging Lightfoot , Sheets called Burchfield and secured his approval for his
action in this regard, as there is nothing in the record to support this conclusion.
8 Sub Grade Engineering Company, 93 NLRB 406 ; American Pipe and Steel Corporation,
93 NLRB 54 . Although Member Murdock dissented from the Board majority ' s decisions
in these two cases and would also dissent for the same reasons from the decision with
regard to Lightfoot in the instant case, he considers himself bound by the majority's
decisions in the cited cases.
THE PUNKIN-CONKEY CONSTRUCTION COMPANY 437
tenure of employment or any term or condition of employment, except
as to the extent authorized by Section 8 (a) (3) of the Act.
(2) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to refrain from
engaging in concerted activities as guaranteed them by Section 7 of:
the Act, 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 by Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Offer to Stewart Leroy Lightfoot immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges.
(2) Upon request, make available to the Board or its agents, for
examination and copying, all pertinent records necessary to analyze
the amount of back pay due under the terms of this Order.
(3) Pcst at its offices in Cleveland, Ohio, and at its Bowerston,
Ohio, job site, copies of the notice attached hereto marked "Appendix
A." 9 Copies of said notice, to be furnished by the Regional Director
for the Eighth Region, shall, after being duly signed by the Re-
spondent Company's representative, be posted by it immediately
upon receipt thereof and be maintained by it for at least sixty (60)
consecutive days thereafter, in conspicuous places, including all-places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent Company to insure that said notices are
not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
II. Respondent Unions, Hoisting, Portable, Shovel Engineers' and
Firemen's Local Union Nos. 18, 18-A, 18-B, 18-C, International Union
of Operating Engineers, AFL, Cleveland, Ohio, and its officers, rep-
resentatives, agents, successors, and assigns, shall :
A. Cease and desist from :
(1) In any manner causing or attempting to cause The Hunkin-
Conkey Construction- Company, its officers, agents, successors, and
assigns, to discriminate against its employees in violation of Section 8
(a) (3) of the Act.
(2) Restraining or coercing employees of The Hunkin-Conkey Con-
struction Company in the exercise of their right to refrain from
engaging in concerted activities, as guaranteed them by Section 7 of
9In the event this Order is enforced by 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."
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Notify The Hunkin-Conkey Construction Company, Cleveland,
'Ohio, and furnish copies to Stewart Leroy Lightfoot, that it has no
objection to his employment'and requests the Respondent Company to
offer him immediate and full reinstatement to his former or substan-
tially equivalent position without prejudice to his seniority and other
rights and privileges.
(2) Post immediately in conspicuous places in its business office
and wherever notices to its members are customarily posted, copies
of the notice attached hereto marked "Appendix B."'° Copies of
said notice, to be furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by an official representative of
Respondent Unions, be posted by them immediately upon receipt
thereof and be maintained for a period of the least sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by Respondent Unions to insure that said notices are not altered,
defaced, or covered by any other material. .
(3) Mail to the Regional Director for the Eighth Region signed
copies of the notice attached hereto as Appendix B for posting, the
Respondent Company willing, at its Cleveland, Ohio, offices and at the
Bowerston, Ohio, job site of the Company, in places where notices to its
employees are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Eighth Region, shall, after
being signed as provided in the preceding paragraph of this Order be
forthwith returned to the aforesaid Regional Director for posting.
(4) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
III. The Respondents, The Hunkin-Conkey Construction Company,
Cleveland, Ohio, its officers, agents, successors, and assigns, and Hoist-
ing, Portable, Shovel Engineers' and Firemen's Local Unions Nos. 18,
18-A,18-B, 18-C, their officers, representatives, agents, successors, and,
assigns shall, jointly and severally, make whole Stewart Leroy Light-
foot for any loss of pay he may have suffered by reason of the discrim-
ination against him in the manner prescribed in "The Remedy" section
of the Intermediate Report.
30 See supra, footnote 9.
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 439
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent Company and the Respondent Unions violated
the Act by agreeing to and making an unlawful hiring arrangement,
be, and it hereby is, dismissed.
MEMBER REYNOLDS, concurring and dissenting in part :
I disagree with reversal by my colleagues of the Trial Examiner's
finding that the Respondent Company and the Respondent Unions
verbally agreed that the Respondent Company would hire only union
members or those who were "cleared" through the Unions' offices. In
my opinion, there is ample evidence in the record to support the Trial
Examiner's conclusion that the parties had entered into this agree-
ment, the effect of which was to give preference in employment to union
members. Accordingly, I would find, like the Trial Examiner, that by
this conduct the Respondent Company violated Section 8 (a) (1) and
8 (a) (3) of the Act and the Respondent Unions violated Section 8 (b)
(1) (A) and 8 (b) (2).11 Otherwise, I concur in the decision of the
majority.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in HozsTING, PORTABLE,
SHOVEL ENGINEERS' AND FIREMEN'S LOCAL UNIONS Nos. 18, 18-A,
18-B, 1 8-C, INTERNATIONAL UNION OF OPERATING ENGINEERS,
AFL, or in any other labor organization of our employees by
discharging any of our employees or discriminating in any other
manner in regard to their hire or tenure of employment, or any
terms or conditions of employment, except to the extent authorized
by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to
refrain from engaging in concerted activities as guaranteed them
by Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section 8
(a) (3) of the Act.
11 Cf. my dissenting opinion in the Pacific American Shipowners .association case,
footnote 4, supra.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to STEWART LEROY LIGHTFOOT immediate and full
reinstatement to his former or substantially equivalent positions
without prejudice to any seniority or other rights or privileges
previously enjoyed, and we will make him whole for any loss of
pay suffered as a result of .the discrimination against him.
THE HUNKIN-CONKEY CONSTRUCTION COMPANY,
Employer.
By --------------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF HOISTING, PORTABLE, SHOVEL ENGINEERS'
AND FIREMEN'S LOCAL UNIONS Nos. 18, 18-A, 18-B, 18-C, INTER-
NATIONAL UNION OF OPERATING ENGINEERS, AFL, OF THE HUNKIN-
CONKEY CONSTRUCTION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT restrain or coerce employees of THE HUNKIN-
CONKEY CONSTRUCTION COMPANY, Cleveland, Ohio, its officers,
agents, successors, and assigns, in the exercise of their right to
refrain from engaging in concerted activities, as guaranteed them
by Section 7 of the Act, 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 by Sec-
tion 8 (a) (3) of the Act.
WE WILL NOT in any manner cause or attempt to cause THE
HUNKIN-CONKEY CONSTRUCTION COMPANY, its officers, agents,
successors, and assigns, to discriminate against its employees in
violation of Section 8 (a) (3) of the Act.
WE WILL make Stewart Leroy Lightfoot whole for any loss of
pay suffered because of the discrimination against him.
WE HAvE no objection to the employment of the above-named
individual, without discrimination, because of his membership or
nonmembership in the unions, and without prejudice to his
seniority or other rights and privileges. We have given THE
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 441
HUNKIN-CONKEY CONSTRUCTION COMPANY, Cleveland, Ohio,
notice to this effect.
HOISTING, PORTABLE, SHOVEL ENGINEERS' AND
FIREMEN'S LOCAL UNIONS Nos. 18, 18-A,
18-B, 18-C, INTERNATIONAL UNION OF OP=
ERATING ENGINEERS, AFL,
Labor Organizations.
By ----------------------------------------------
(Representative) . (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any, other material.
Intermediate Report
STATEMENT OF THE CASE
Upon amended charges duly filed by Stewart Leroy Lightfoot, an individual,
the General Counsel, of. the National Labor Relations Board, by the Regional
Director for the Eighth Region (Cleveland, Ohio), issued separate complaints
on July 6, 1950, against The Hunkin-Conkey Construction Company, herein
called the Respondent Company, and Hoisting, Portable, Shovel Engineers' and
Firemen's Local Unions Nos. 18, 18-A, 18-B, 18-C, International Union of
Operating Engineers, AFL, herein called the Respondent Unions, jointly referred
to herein as Respondents, alleging that Respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3), 8 (b) (1) (A), and 8 (b) (2) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaints, charges, and notice of hearing thereon were
duly served upon Respondents.
With respect to the unfair labor practices, the consolidated complaint alleges
that Respondent Unions on or about December 5, 1949, had caused Respondent
'Company to discharge Stewart Leroy Lightfoot at the request of Respondent
Unions for the reason that he failed to attend a union meeting and since De-
cember 5, 1949, caused the Respondent Company to fail to, refuse to, and con-
tinue to refuse to, reinstate Stewart Leroy Lightfoot to his former or sub-
stantially equivalent position or employment. The complaints further alleged
that the Respondent Company as a member of and through the Ohio Contractors
Association, on or about July 15, 1949, and again on or about January 16, 1950,
entered into and at all times thereafter has maintained in effect contracts with
the Respondent Unions, providing inter alia that the Respondent Company should
and would give preference to Respondent Unions' members in filling job open-
ings ; that since on or about July 15, 1949, and continuously to date, said Respond-
ents have so interpreted and administered the contracts, referred to above, as to
give preference to union members in filling job openings and to require all
employees to be and remain union members or to obtain clearances from Re-
spondent Unions in the form of work permits or otherwise as a condition of
employment ; and that by such conduct the Respondents did interfere with.
restrain, and coerce the rights of thet Respondent Company's employees in the
442. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of the rights guaranteed them by -Section 7 of the Act; and that this
conduct on the part of the Respondents was violative of Section 8 (a) (1) and
(3) and Section 8 (b) (1) (A) and (2) of the Act. The Respondent Company
and the Respondent Unions filed their respective answers on July 14, 1950. In
their answers the Respondents admit certain.factual allegations, such as regards
commerce, but denied the commission, of any unfair labor practices.
Pursuant to notice and order consolidating.cases, a hearing was held at Akron,
Ohio, on July 24 and 25, 1950, before the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel and the Respond-
ents were represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introdue'
evidence bearing on the issues was afforded all parties.
On the first day of the hearing the General Counsel offered in evidence the
second amended charges to be attached to both complaints. Each charge alleged
that the Respondents had engaged in unfair labor practices by entering into the
contracts described above, and in their interpretation as regards the hiring and
referral of only union members to the Respondent Company for employment. At
the time the General Counsel offered the charges in evidence he served each of
the parties with a copy of the charge. Counsel for the Respondents objected
to their admission in evidence on the following ground : (1) That neither the
original charge filed December 9, 1949, nor the amended charge, filed April 28,
1950, set forth any allegation as regards said contracts; (2) that the method
and manner of service was improper since it was made during the course of the
hearing, and was not timely and proper as required in Section 203.14 of the
Board's Rules and Regulations.; and (3) that under the Act and the
Board's Rules and Regulations a charge must set forth "clear and concise state-
ment of the facts constituting the alleged unfair labor practices...." The under-
signed refused to admit the second amended charges in evidence on the following
grounds: (1) Because they were surplusage in that since the original charges
were timely filed, and the alleged. unfair labor practices set forth in the second
amended charges occurred less than 6 months before the original charge was filed
it was unnecessary in view of the Board's policy as enunciated in the Cathey
Lumber Company case, 84 NLRB 157;' (2) proper procedure in such situations
ordinarily is by way of amendment but where as here the complaints alleged
the allegations continued in the second amended charges and the Respondents in,
their answers denied said allegations therein, the issues were raised and the
filing of such charges at this late date could serve no useful purpose.
At the close of the General Counsel's case in chief he moved to amend the
complaint in Case No. 8-CA-307, as follows :
. . . to amend paragraph 4 by eliminating the original wording and
substituting this wording :
Respondent on or about June, 1949, entered into and at all times there-
after has maintained in effect an arrangement or practice with said unions
providing, inter alia, that the respondent would and should give preference
to union members in filling job openings.
. .. as to paragraph 5 of the same complaint 8-CA-307, that since on or
about July 15, 1949, and continuously to date, said unions and the respondent
have so interpreted and administered the arrangement and practice referred
to in paragraph 4 above as to give preference to union members in filling
job openings and to require all employees to be and remain union members
' See Stokely Foods, Inc., 91 NLRB 1267.
e
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 443
or to obtain clearances from said unions in the form of work permits or
otherwise as a condition of employment.
The General Counsel also moved to amend the complaint in Case No. 8-CA-35
in paragraphs 4 and 5 as follows :
Respondents on or about July 15, 1949, entered into and at all times
thereafter have maintained in effect and [sic]. or arrangement or practice
with-the company providing, inter alia, that the company should and would
give preference to union members in filling job openings.
Paragraph 5: "That since on or about July 15, 1949, and continuously
to date respondents and the company have so interpreted and administered
the arrangement or practices referred to in Paragraph 4 above as to give
preference to union members in filling job openings and to require all em-
ployees to be and remain members or to obtain clearance from said re-
spondents in the form bf work permits or otherwise as a condition of
employment.
The above motions were granted by the undersigned. Counsel for the Re-
spondents then moved to strike the above paragraphs 4 and 5 from the original
complaints and as now amended. The undersigned granted the motion to this
extent : Paragraphs 4 and 5 were ordered stricken from the original complaints,
but denied the motion insofar as the complaints as now amended are concerned.
Counsel for the Respondents, then moved to amend the answers to the com-
plaints to deny the allegations made by the General Counsel in his amended
complaints. The motion was granted by the undersigned.
At the conclusion of the General Counsel's case, counsel for the Respondents
moved to dismiss the complaints as amended on the grounds: (1) That no proper
charge had been filed with the complaints setting forth in clear and concise
language grounds for the allegations in the complaints; and (2) that the General
Counsel had failed to prove by reliable, probative, and substantial evidence the
allegations in the complaints as amended. Ruling on the motion was reserved
by the undersigned. It is hereby denied.
In his oral argument and in fact throughout the hearing herein (as indicated
above), counsel for the Respondent vigorously contended that the allegations in
the complaints as amended relative to the agreements between the Respondent
Company and the Respondent Unions were not based on a proper charge, and
that said complaints therefore should be dismissed as far as these allegations
are concerned because they are barred by the provisions of Section 10 (b) of
the Act. Counsel for the Respondents predicated his position on the fact that
neither the original charges nor the amended charges set forth any statements
relative to the agreements between the Respondent Company and the Respondent
Unions in this regard, and that since the alleged unfair labor practices that are
set forth in the complaints occurred more than 6 months before the Respondents
were apprised of said alleged unfair -labor practices, hence Section 10 (b) is
applicable and that for this reason said allegations in both the original com-
plaints and as amended at the hearing should be dismissed as a matter of law.2
The undersigned rejected the Respondents' contentions as regards the above
and reiterates his position at this time. The undersigned is convinced and finds
that there is no merit in the Respondents' contention that Section 10 (b) is
applicable to the complaints as amended because the charges and amended
2 See supra in this section of the Intermediate Report that sets forth the rejection of
the two second amended charges offered in evidence by the General Counsel at the
bearing herein.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges did not mention the allegations in the complaints as regards the agree-
ments between the Respondent Company and the Respondent Unions. Suffice it
to say that since . the original charge was filed on December 9, 1949, and the
alleged unfair labor practices with which we are concerned occurred on or about
July 15, 1949, they were well within the 6-month period and hence the limitation
set forth in Section 10 (b) does not apply in view of the Board's decision in
the Cathey Lumber Company case, 86 NLRB 157. In that case the Board
discussed at length Section 10 (b) and held in substance that an unfair labor
practice finding may be based upon any conduct which occurred within a 6-month
period before the filing of the charge even though the charge does not specifically
set forth such conduct, where the complaint which issues pursuant to the charge
alleges the conduct as an unfair labor practice. The function of a charge has
been well stated by the Supreme Court in the Indiana and Michigan Electric
Company case, 318 U. S. 9, at page 18, wherein tite Court speaking through Mr.
Justice Jackson said, inter alia:
The charge is not proof, it merely sets in motion the machinery of an
inquiry when a Board complaint issues the question is only the truth of
its accusations. The charge does not even serve the purpose of a pleading.
Dubious character, evil or unlawful motives, or bad faith of the informer
cannot deprive the Board of its jurisdiction to conduct the inquiry.
At the close of the hearing the General Counsel moved to have the pleadings-
conform to the proof as to minor matters such as names, dates, and the like. The
motion was granted by the undersigned without objection.
Counsel for all the parties argued orally before the undersigned. Briefs
.were submitted by all the parties to the undersigned on various dates between
September 29 and October 4, 1950, and have been carefully considered by him.
Upon the entire record in the case and from observation of the witnesses, they.
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT COMPANY
The Hunkin-Conkey Construction Company is and has been at all times material
herein an Ohio corporation with its principal offices located at Cleveland, Ohio,
engaged in. carrying on a general contractual business for all types of heavy
-construction in Ohio, Pennsylvania, New York, and various other States of the
United States.
The Respondent Company in the course and conduct of its business operations,
annually purchased, delivered, and transported in interstate commerce raw
materials having a value in excess of $2,000,000, from outside the States wherein
its particular operations are in progress. The value-of its contracts for con-
struction operations in various States of the United States during the past
12-month period were in excess of $5,000,000.
The Respondent Company concedes and the undersigned finds that it is engaged
in commerce within the meaning of Section 2 (5) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Hoisting, Portable, Shovel Engineers' and Firemen's Local Unions Nos. 18,
18-A, 18-B, 18-C, International Union of Operating Engineers, AFL, are labor
organizations within the meaning of the Act.
THE HUNKIN-CONKEY CONSTRUCTION COMPANY
III. THE UNFAIR LABOR PRACTICES
445
A. The agreement between the Respondents and their interpretation and practice
in carrying out the terms of said agreement
In the spring of 1949, the Respondent Company entered into a contract with
the Pennsylvania Railroad Company to relocate its main line near Bowerston,
Harrison County, Ohio.4 Shortly thereafter C. N. Burchfield, business agent for
Locals 18, 18-A, 18-B, and 18-C, whose headquarters are in Canton, Ohio, ap-
proached Mr. Hunkin, president of the Respondent Company, and a Mr. Robert-
son, an official of the Company, and offered the service of Local 18 in supplying
men for the Bowerston job. Robertson advised Burchfield that if they needed
men they would call upon the Union to furnish them. Thereafter, Paul Sheets,
the master mechanic on the Bowerston job, regularly called the Union for men.
Sheets was in actual charge of the men working on the job and had full authority
to hire and fire. There is no dispute as to his supervisory status. Sheets was
and is a member of Local 18, and at the time of the hearing had been such for
.more than 10 years.
The evidence adduced at the hearing clearly shows that there was no written
agreement between the Respondents as regards the preferential hiring of union
members. On the other hand, however, there is substantial evidence in the
record that there was an "agreement" or "arrangement" between the Respond-
ents that employees needed for the Bowerston •job would be hired through the
Unions' office in Canton, Ohio. The practice was for the Union to issue referral
or work order "slips" to their members who were on its "out of work" list and
sent them to the Bowerston job when a request for employees was made to it by
supervisors employed at the job site. Moreover, there is substantial evidence
in the record that applicants for employment at the job site were required to
clear through the Union before they would be given employment. This is evi-
denced by the credible testimony of witness McElhaney, and the admissions of
Buchfield, the Union's business agent, and Paul Sheets, master mechanic at the
job site .for the Respondent Company. Their testimony in this regard will be
set forth in detail hereinafter.
Burchfield testified that while applications for employment by nonmembers
were accepted at the Union 's office in Canton, Ohio, union members were naturally
given preference. An example of this practice is well illustrated by the fact
that of the 127 employees furnished by the Union to the Respondent Company
for its Bowerston job, only 7 were nonmembers, or about .055 percent. The record
is silent as to who these 7 employees were or to what jobs they were assigned.
It may well be that they were assigned to menial jobs, such as laborers and
the like, and not to the skilled crafts which employees constituted the bulk of the
Union's membership.
James L. Erwin , vice president and secretary of the Respondent Company,
testified credibly that employees were hired through the Union because it was the
"general source of supply." His testimony in this regard was as follows:
The findings of fact herein are based on the credited and uncontradicted testimony of
witnesses called by both the General Counsel and the Respondents.
* The record shows that some witnesses placed Bowerston in Carroll County, and others
in Harrison County. The official highway department map of the State of Ohio shows
it to be near or on the county line . However , the record shows that the actual construc-
tion work was in Carroll County . As will be shown hereinafter, the location of the job
has an important bearing on the issues involved herein.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Do you know how it happens that the Operating Engineers Local 18,
18-A, 18-B and 18-C, through their Canton office furnished you 127 men on
work referral orders that were stipulated here in the hearing yesterday?
A. That's the general source of the supply, and they knew that we were
looking for men and they sent them down. It is the same as the employment
bureaus. We call them up and ask them for men. They give them a slip,
and they are sent to us to either accept or reject.
Q. Do you know whether or not you made any arrangements to notify them
of any specific job openings?
A. That being one of the sources of supply when we were in need of help,
we would undoubtedly contact them. Probably we needed engineers, me-
chanics, the same as when we call upon a supply house if we wanted lumber.
We call them.
Trial Examiner SHAW. You are now referring to Local 18?
Mr. MARTIN . 18, 18-A, and 18-B through their Canton office.
Trial Examiner SHAW. Let us get this clear. You not only contacted
them, you also contacted the Bureau of Unemployment, is that correct?
The WITNESS. I wouldn't say in this case. We do that; we call all the
sources.
Sheets testified at the hearing herein that while it was 'customary to call
the Union for men when jobs were available, he nevertheless was not required
to do so and in fact did hire nonunion members at the job site without con-
sulting the Union, and cited three instances. Of the three he personally hired,
two were already on the job working as laborers. when he took charge of the
operations, and the third was an employee who came out to the job and asked
for work, and was hired as a truck driver. On direct examination he testified
that he never at any time, while master mechanic on the Bowerston job, re-
quired applicants for employment to go to the Union's office in Canton, Ohio,
and secure a referral slip from the Union as a prerequisite for employment.
On the other hand Sheets in an affidavit given one Greisbach, a field examiner
for the Board on February 14, 1950, made statements contrary to his testimony
on direct examination. Following excerpt from his affidavit is set forth herein
below :
AFFIDAVIT
I, Paul Sheets, living at Route 3, Wooster, Ohio, after being duly sworn,
depose and voluntarily state :
I am employed as a master mechanic by the Hunkin-Conkey Construction
Company at its job site near Bowerston, Ohio, where it is engaged in a
railroad relocation for the Pennsylvania Railroad. I am in charge of all
hiring and firing of operators on the job. My immediate superior is Mr.
Bartle, superintendent of the job.
When we need a new operator employee, I contact the Canton office of
Local 18, District 7, International Union of Operating Engineers and tell
them what type of employee we need. They contact someone with the re-
quired job qualifications and is§ue him a work order and send him to the
job site. The man reports to me and I take him to the company office and
have him put on the company payroll.
I am a rank and file member of the union and got my present job in
the same manner last June, when the Bowerston job started.
Harry McElhaney, a witness called by the General Counsel, testified that
sometime, in the latter part of November 1949, he went to the Bowerston job
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 447
and asked Sheets for a job. Sheets told him that he was not hiring any men
and that the Company "get all their men out of the union hall in Canton.'!
McElhaney was a member of the Union and went to Canton to see Burchfield,
the Union's business agent, about the Bowerston job. Burchfield told him that
there were no jobs available at the time and requested that he leave his address
and telephone number so that he could get in touch with him as -soon as a job
was available. A few days later Burchfield called McElhaney and requested
that he come to the union hall and get a "work order" and report to Sheets for
work on the Bowerston job. McElhaney did so, and Sheets put him to work.
At the time McElhaney reported to Sheets he told him that Burchfield said that
he (McElhaney) was to work on the morning shift the first day and thereafter on:
the afternoon shift so that he could ride back and forth to work with his brother-
in-law, Lightfoot. Sheets told him that this arrangement was all right. On,
the second day he reported for the afternoon shift, but there was no tractor
for him to operate, and he was assigned to work in the tool shed. At the end
of the shift, Sheets told him to report the next day on the morning shift, and to
work there until he could find a place for him on the afternoon shift. .
McElhaney impressed the undersigned as an honest and forthright witness.
Sheets on the other hand was at times evasive in his testimony, especially
on cross-examination, and on several instances reluctantly changed his testi-
mony as regards the practice of the Respondents in the employment of em-
ployees for the Bowerston job. Moreover his testimony, particularly on direct
examination, and on cross-examination as well, is at variance with the state-
ments given the Board's field examiner in his affidavit dated February 14, 1950.
Consequently the undersigned credits McElhaney's testimony and discredits
that of Sheets in this regard.
The close relationship between the Respondent Company and the Union is
best illustrated by the circumstances surrounding the discharge of Stewart
Lightfoot which will be set forth in detail hereinafter.
Conclusions Regarding the Existence of an Agreement and Its Legal Effect Under
the Act
It is well settled that the Act does not require contracts' between employers
and labor organizations to be in any particular form, or that they be reduced
to writing c It is a matter of common knowledge to those engaged in the field
of labor relations that in the building and construction trades verbal agree-
ments between employers and labor organizations are quite common, and that
this practice is prevalent throughout the country. This is particularly true
as regards wages, hours, and union security.
In the considered opinion of the undersigned, and upon the record as a whole,
the undersigned is convinced and he so finds that there was a verbal "under-
standing" between the Respondents as regards wages, hours, .and preference for
employees who were members of the Respondent Unions. This not only is
evidenced by the findings made above but by the circumstances surrounding
Lightfoot's discharge which will be set forth in detail hereinafter. The Re-
spondent Company consistently either referred applicants for jobs to the Re-
spondent Unions for clearance or requested that the Union select from its out-
of-work roster employees when they were needed on the job. As indicated and
found above, 120 of the 127 employees who were cleared through Local 18's.
6 See N. L. R. B. V. Scientific Nutrition Corporation; 180 F. 2d 447, 449 (C. A. 9) ;
Von's Grocery Company; 91 NLRB 504.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offices in Canton, Ohio, were union members. Of the remaining 7 employees,
3 or 4 later became members of the Union.
Under the circumstances found above the undersigned finds that the Respond-
ent Company and the Respondent Unions verbally agreed that the Respondent
Company would hire only union members or those who were "cleared" through
Local 18's Canton, Ohio, office. By such conduct and by carrying out the terms
of said "agreement" or arrangement, both of the Respondents herein violated
the Act.
The Board has held in a number of cases that a contract either written or
verbal under which union members rnare given preference for available jobs is
violative of the Act, and goes beyond the permissible union shop provided for
under Section 8 (a) (3) of the Act. The theory of the Board is that such
provisions as found herein impose a restraint on employees desiring to refrain
from union activities within the meaning of Section 7 of the Act and that
employers parties to such agreements have violated Section 8 (a) (1) and 8
(a) (3) of the Act. The Board has also held that the effect of such agreements
Is to coerce employees into becoming and remaining members of the union.
The Board has also held that parties to such agreements have by entering into
agreements according preference in employment to members of a union and by
carrying out such agreements by actually giving preference in employment to
union members , have violated the Act. Accordingly the undersigned finds that by
such conduct the Respondent Company violated 8 (a) (1) and 8 (a) (3) of the
Act and the Respondent Unions 8 (b) (1) (A) and 8 (b) (2) of the Act.6
. B. The, discriminatory discharge of Stewart Leroy Lightfoot
Lightfoot was employed by the Respondent Company sometime during the first
week of November 1949. He was referred to the job by Burchfield, the Respondent
Unions' business agent. At that time Lightfoot had been a member of the Union
since 1941.. And as an operator he worked ordinarily on "dozers" and "scoops."
Lightfoot like the majority of the employees on the Bowerston job lived in the
Canton and Massillon, Ohio, area, which is approximately 55 miles from the job
site. Due to this geographical situation it was difficult for the employees to get
to and from the. job. As a result of this situation and the further fact that
housing facilities near the job site were practically nonexistent, numerous
grievances arose between the employees and management. The resulting tension
and unrest became so serious that the Respondent Company requested Burchfield
to go to the job site and see what could he done to correct the situation. In
September 1949 Burchfield went to the job site and after consultation with man-
agement a number of grievances were settled. Sometime in November 1949
tension and unrest again developed, and Burchfield together with his assistant
again met with officials of management at the job site. The situation by that
time was getting serious, and the parties agreed that a meeting of all employees
on the job and representatives of management was necessary. The idea was that
the aggrieved employees would be asked to "air" their grievances and management
representatives state to the employees their position, and for. all concerned to
attempt to work out a solution of the problem. It was agreed by the parties that
Burchfield would draft a letter to each employee on the job, and that Paul Sheets,
the Respondent Company's master mechanic, would personally deliver to each
employee mimeographed copies of Burchfield's letter. Burchfield drafted the
° See International Longshoremen's and Warehonsernen.'s Union and Waterfront
Employees of the Pacific Coast, 90. NLRB 1021; National Union of Marine Cooks and
Pacific Shipowners Association, 90 NLRB 1099. - See also New York State Ennplogers
Association, Inc., and Red Star Express Lines of Auburn, Inc., 93 NLRB 127.
THE HUNBIN-CONKEY CONSTRUCTION COMPANY 449
following letter, and Sheets in accordance with the above agreement personally
delivered copies to each employee on the job.
INTERNATIONAL UNION OF OPERATING ENGINEERS
C. N. BURCHFIELD,
District Representative, 803 W. Tuscaraavas Ave., Canton 2, Ohio.
CANTON, OHIO, Nov. 28, 1949.
DEAR SIR AND BROTHER : This is to notify you that a meeting is being called
of all members of the Operating Engineers who are employed on the Hunkin-
Conkey job at Bowerston, Ohio. '
This meeting is for the purpose of discussing the working conditions, and
everything else which in the slightest degree effects the operation and
progress of this fob.
Do not mistake this as a request that you attend this meeting. We expect
to see every man who is working on this job at the meeting, and a roll call
will be taken to determine just who are absent and who are present.
The meeting is called for 1: 30 P. M. Sunday afternoon, December 4th., at
803 West Tuscarawas St., Canton, Ohio.
Do not fail to attend.
Fraternally yours,
(S) C. N. Burchfield,
C. N. BURCHFIELD,
(S) Chas. N. Rutherford,
CHAS. N. RUTHERFORD,
Representatives, I. U. 0. E. Local #18, District 7.
CNB:
CNR: Al
e. e. i. u. # 72-AFL
At the time Sheets delivered the letters he told several of the employees that
they were expected to attend the meeting and that the letter was "self-explana-
tory."
The meeting was held as scheduled at the AFL hall in Canton, Ohio, on the
afternoon of December 4, 1949. Present as representatives of the Respondent
Company were Sheets, master mechanic, and Abrams, •a foreman. Burchfield
and Rutherford represented the Respondent Unions.
Shortly after the meeting opened, Rutherford took a roll call of those present,
and as a result it was found that all but five of the employees were present.
Burchfield, who was in charge of the meeting, told Sheets in substance that he
was to discharge all employees who were not present at the meeting unless they
had "a damn good excuse" for not so doing. He also told Sheets that this was
"an order" and he expected him to carry it out. Burchfield's remarks to Sheets
were made in open meeting and heard by those present. Sheets admitted at the
hearing herein that Burchfield made the above statement to him. He also
executed an affidavit before one of the Board's field examiners wherein he also
stated that Burchfield gave him instructions to fire all employees who were not
present at the meeting.
During the course of the meeting numerous grievances were "ironed out" and
one man, McElhaney, who had been discharged by Sheets for not reporting to the
office and informing the Respondent Company that he was ill and unable to come
to work. At the meeting it was found that he had attempted to get in touch with
the office but was unable to do so. Burchfield then told him to go back to the job
and go to work.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next morning , December 5, 1949, Sheets came to Lightfoot and asked hint
why he did not attend the meeting.' Lightfoot told Sheets it was none of his
business . At quitting time Sheets handed Lightfoot his check and discharged
him. Lightfoot asked for his separation slip, and he was instructed to go to the
office for it. On the slip the reason given for his separation from the Respondent
Company's employment was "union dispute."
Before discharging Lightfoot , Sheets called Burchfield and secured his approval
for his action in this regard. Bartle, the Respondent Company ' s superintendent,
also approved Sheets' discharge of Lightfoot.
Sheets' version of the discharge was that Lightfoot , in answer to his query as
regards his absence from the meeting , said "It is none of your damned business,"
and that he considered the remark "snotty," and that this was the reason for
his summary action in this regard . Sheets also advanced two or three other
reasons for Lightfoot 's discharge at the hearing herein , all of which, in the
considered opinion of the undersigned , are so trivial and unrealistic that he
finds them to be wholly without merit.
Following his discharge Lightfoot went to the Respondent Unions' office in
Canton, Ohio , on December 8, 1949, and filled out an "out of work slip." The
next day, December 9, 1949, he went to the offices of the Board in Cleveland, Ohio,
and filed unfair labor practice charges against the Respondents herein.
On February 13, 1950, Burchfield called at Lightfoot's home in Massillon, Ohio,
and informed him that he had a job for him near Cadiz, Ohio. Lightfoot, at
that time, could not take the job because his car was in the garage for repair
and no other satisfactory transportation was available. On February '21, 1950,
Burchfield called Lightfoot and told him that the job at Cadiz was still open and
that he could have it. By this time Lightfoot's car was in running order and he
accepted it, and at the time of the hearing herein he was still working on this job.
At the hearing herein Charles Rutherford, office manager of the Respondent
Unions' offices in Canton, Ohio, testified that the Respondent Unions, through
his office, on several occasions called Lightfoot and offered him jobs on several
projects, but that he either refused to take the jobs or they were unable to get
in touch with him or members of his family at his home. Lightfoot and his wife
denied Rutherford 's testimony in this regard in its entirety , and testified that
the only official of the Respondent Unions who contacted him about a job was
Burchfield, who came to his home on February 13, 1950. Their testimony in this
regard is buttressed by the fact that Rutherford testified that he called Lightfoot
on December 8 or 9, 1949 , and offered him a job, and that he refused to accept
it. The uncontradicted and credible testimony in the record is to the contrary.
The testimony of Lightfoot and Burchfield and the documentary evidence in the
record clearly refutes Rutherford 's testimony in this regard . The record is
clear that on December 8, 1949, Lightfoot was in the Unions' office in Canton,
Ohio, and met with Burchfield. At the same time he made out an "out of work"
form. On December 9, 1949, lie spent the day in the Board's office in Cleveland,
Ohio, and filed charges against the Respondents herein. Moreover, Rutherford's
testimony in other regards is at variance with that of Burchfield , Sheets, Me-
Elhaney, and Greene, as to what transpired at the meeting on December 4, 1949.
For example, he denied that certain events occurred at that meeting which all of
the above witnesses testified did occur , and that Rutherford was present through-
out the meeting and actively participated in it. In such a state of the record the
undersigned credits the testimony of Lightfoot and his wife in this regard and
discredits that of Rutherford in its entirety , and finds that the Respondent
Unions did not contact Lightfoot about a job until February 13, 1950.
' All of the absent employees but Lightfoot had good excuses for missing the meeting.
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 451
Counsel for the Respondents at the hearing and in his brief contended in sub-
stance that since the meeting on December 4, 1949, was informal and not a
formal union meeting that the Respondent Unions should not be held responsible
for Lightfoot's discharge, and that by the salve token neither is the Respondent
Company. The undersigned is convinced and finds that this contention is with-
out merit. In the. first place the record clearly shows that Burchfield,' the
Unions' business agent, completely dominated the meeting, and ordered Sheets,
the master mechanic for the Respondent Company, to "fire" all those employees
who did not attend the meeting unless they had a "damn good excuse" ; secondly,
the Respondent Company through Sheets, with the approval of Superintendent
Bartle, acquiesced in and carried out Burchfield's demands in this regard by dis-
charging Lightfoot:
Concluding Findings
In view of the foregoing findings and upon the record as a whole the under-
signed is convinced and he so finds that Stewart Leroy Lightfoot was discharged
by the Respondent Company at the request and demand of the Respondent Unions
for failure to attend a union meeting on December 4, 1949. Such conduct is
clearly violative of Section 7 of the Act which provides inter alia that employees
may engage in union activities or refrain from doing so. The undersigned is
convinced for reasons set forth above that the meeting of December 4, 1949, was
a union meeting. Without question such meetings are "concerted activities"
within the meaning of the Act, and no lengthy dissertation in this regard is either
necessary or desirable herein. Lightfoot chose to exercise his statutory right
to refrain from engaging or participating in the union meeting. His decision
in, this regard is a protected activity and neither the Respondent Company nor
the Respondent Unions have a legal right to penalize or discriminate against him
for exercising the rights guaranteed him by Section 7 of the Act .8
By the conduct described hereinabove the Respondent Company violated Sec-
tion 8 (a) (1) and 8 (a) (3) of the Act, and the Respondent Unions, Section 8
(b) (1) (A) and 8 (b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCP
The activities of the Respondents set forth in Section III, above, occurring in
connection with the activities of the Respondent Company 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
Having found that Respondents, and each of them, have engaged in unfair
labor practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found above that the Respondents herein entered into
a verbal understanding or agreement sometime in May 1949, whereby employee
members of the Respondent Unions were to be given preference in hiring em-
ployees for the Respondent Company's Bowerston, Ohio, job, and by such conduct
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act. It will therefore be recom-
mended that the Respondents herein cease and desist from giving any and all
effect to said agreement, arrangements, or "understanding."
a See H. M. Newman, 27 LRRM 1463.
961974-52-vol. 9 5-20
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned has found that Respondent Company has discriminated with
regard to the hire and tenure of employment of Stewart Leroy Lightfoot, and
has interfered with, restrained, and coerced him in the exercise of the rights
guaranteed by Section 7 of the Act. It will be recommended that Respondent
Company offer him immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority and other rights
and privileges.
The undersigned has further found that Respondent Unions have caused Re-
spondent Company to discriminate with regard to the hire and tenure of em-
ployment of Stewart Leroy Lightfoot.. Accordingly, it will be recommended that
Respondent Unions notify the Company in writing that they have no objection
to his employment, and that they request the Company to offer him immediate
and full reinstatement to his former or substantially equivalent position with-
out prejudice to his seniority and other rights and privileges.
It will be further recommended that Respondents jointly and severally make
whole Stewart Leroy Lightfoot for, any loss of pay he may have suffered by
reason of the discrimination against him by the payment to him of a sum of
money equal to the amount he would normally have earned as wages from the
date of the discrimination against him to the date of the offer of reinstatement
less his net earnings during such period. Said loss of pay shall be computed on
the basis of each separate calendar quarter or portion thereof during the period
from the date of Respondents' discriminatory action to the date of a proper
offer of reinstatement. F. W. Woolworth Company, 90 NLRB 289, and Cen-
Tennial Cotton Gin Company, 90 NLRB 345.
As it would be unequitable to Respondent Unions to permit the amount of their
liability to increase despite the possibility of their willingness to cease past
discrimination in the event Respondent Company should fail to offer reinstate-
ment to him under the recommended order, the undersigned will provide that
Respondent Unions may terminate their liability for further accrual of back pay
by notifying Respondent Company in writing that they have no objection to the
reinstatement of Stewart Leroy Lightfoot, as provided hereinabove, and it is
recommended in that event, that Respondent Unions shall not thereafter be
liable for any back pay accruing after 5 days from the signing of such notice.
Absent such notification, it is recommended that Respondent Unions shall re-
main jointly and severally liable with Respondent Company for all back pay that
may accrue, Pinkerton's National Detective Agency, Inc., et at., 90 NLRB 205.
In order to insure expeditious compliance with the recommended back-pay and
reinstatement order, it is likewise recommended that Respondent Company be
ordered, upon reasonable request, to make all pertinent records available to the
Board or its agents. F. W. Woolworth Company, supra.
Upon completion of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Respondent Company, The Hunkin-Conkey Construction Company, is
engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent Unions, Hoisting, Portable, Shovel Engineers' and Firemen's
Local Unions Nos. 18, 18-A, 18-B, and 18-C, International Union of Operating
Engineers, AFL, are labor organizations within the meaning of the Act.
3. By entering into, being party to, and participating in the enforcement of
an agreement, arrangement, or "understanding" which required it to discrimin-
ate in favor of members of the Respondent Unions, the Respondent Company,
The Hunkin-Conkey Construction Company, has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 ( a) (1) and 8 (a) (3)
of the Act.
KENTUCKY SYNTHETIC RUBBER CORPORATION 453
4. By entering into, being a party to , 'and participating in the enforcement of
:an agreement, arrangement , or "understanding ," which required the Respondent
Company to discriminate in favor of its members , thereby attempting to cause
the Respondent Company to discriminate against employees and prospective
employees and to encourage membership in the Respondent Unions in violation
of Section 8 (a) (3) of the Act, the Respondent Unions have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (b) (1)
( A) and b (b) (2) of the Act.
5. By discriminating with respect to the hire and tenure of 'employment of
Stewart Leroy Lightfoot, and thereby encouraging membership in Respondent
Unions , the Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section S (a) (3) and 8 ( a) (1) of the Act.
6. By interfering with, restraining , and coercing the employees in the exer-
cise of the rights guaranteed in Section 7 of the Act , Respondent Company has
engaged in and, is engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
7. By causing the Respondent Company to discriminate in regard to the hire
and tenure of employment of Stewart Leroy Lightfoot in violation of Section
8 (a) (3) of the Act, the Respondent Unions have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 ( b) (2) of the Act.
S. By restraining and coercing employees of Respondent Company in the exer-
cise of the rights guaranteed by Section 7 of the Act , Respondent Unions have
engaged in and are engaging in unfair labor practices within the meaning of Sec-
tion S (b) (1) (A) of the Act.
The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
KENTUCKY SYNTHETIC RUBBER CORPORATION and DISTILLERY, RECTI-
FYING AND WINE WORKERS' INTERNATIONAL UNION OF AMERICA,
AFL; PIPE FITTERS LOCAL UNION #522, UNITED ASSOCIATION OF
JOURNEYMAN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA, AFL; GENERAL
DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION #89, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL; UNITED RUBBER, CORK,
LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO; LODGE #681,
INTERNATIONAL ASSOCIATION OF MACHINISTS ; PAINTERS LOCAL # 118,
PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL; AND
FALLS CITIES CARPENTERS DISTRICT COUNCIL, THE UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, PETITIONERS.
Cases Nos. 9-RC-1120, 9-RC-1121, 9-RC-1131, 9-RC-1167, 9-RC-
1170,9-RC-1173, and 9-RC-1186. July X3,1951
Decision, Order , and.Direction of Elections
Upon separate petitions duly filed, a consolidated hearing was held
before Joseph A. Butler, hearing officer. The hearing officer's rulings
95 NLRB No. 55.