Whittenberg Construction Co.

National Labor Relations Board - Board Decisions

Sep 10, 1951

96 N.L.R.B. 29 (N.L.R.B. 1951)

WHITTENBERG CONSTRUCTION COMPANY 29
WHITTENBERG CONSTRUCTION COMPANY and INTERNATIONAL ASSOCIA-
TION OF MACJIIINISTS. Case No. 9-CA-222 . September 10, 1951
Decision and Order
On April 30, 1951, Trial Examiner Peter F. Ward issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed?
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings,' conclusions, and recommendations of the
Trial Examiner with the following modification.
Unlike the Trial Examiner we are unable to impute to the Re-
spondent knowledge of the fact that job applicant Vines was a mem-
ber of the IAM rather than the Carpenters solely from the fact that
such information was communicated by Vines to the guard, Rogers 4
Nor does the record contain any other evidence which would establish
such knowledge by the Respondent. Moreover, while we agree with
the Trial Examiner's finding that the Respondent had adopted a dis-
criminatory hiring policy, Vines' testimony as to what Rogers told
him Downs, the millwright foreman, had said,. is clearly hearsay and
does not establish that Downs actually made such statements to
Rogers. In these circumstances and in the absence of any other evi-
dence, we conclude that the complaint as to Vines is not supported by
a preponderance of the relevant and probative evidence.'
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston , Reynolds,
and Styles].
I We find no merit to the Respondent's contention that the Trial Examiner was biased
and prejudiced because he credited the testimony of the General Counsel' s witnesses and
failed to credit those of the Respondent . See N. L. R. B. v. Pittsburgh Steamship Com-
pany, 340 U. S 498
8 The Intermediate Report contains certain erroneous statements of fact and inadver-
tences , none of which affects the Trial Examiner ' s ultimate conclusions or our concurrence
therein. Accordingly , we make the following corrections : ( 1) In the conversation of
Aukust 24 between Griffin and Vaughan the Trial Examiner states ". . . Bryant re-
plied. . . This should be ". . Griffin replied . . ." and (2 ) Anthony Daniel Kelly's
age is 49 instead of 29 as found by the Trial Examiner.
4 See The Kellogg Company, 94 NLRB 526.
V Member Reynolds dissents from this finding for the reasons stated in his separate
opinion.
96 NLRB No. 9.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, although we adopt the Trial Examiner's findings and
conclusions as to the other 15 alleged discriminatees, we shall dismiss
the complaint as to Vines.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, Whittenberg Construction Company, and
its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of
Machinists, or in any other labor organization of its employees, or
encouraging membership in United Brotherhood of Carpenters and
Joiners of America, AFL, or in any other labor organization of its
employees , by discriminating in regard to their hire, tenure of employ-
ment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the International Association of
Machinists, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in collec-
tive 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 organiza-
tion 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 Cecil Weitlauf, W. L. Choate, Anthony Daniel
Kelly, James Edwin Smith, William Early Sloan, Glenn W. Mc-
Kinney, Raymond K. King, James Bradley Smith, Z. C. Herrold, Sam
J. Sloan, Reginald Purcell, A. L. Ham, John W. Dowell, Earl D.
Terry, and Fred O. Rupche in the manner set forth in the Intermedi-
ate Report attached hereto in the section entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, personnel records and reports, and all other records necessary
to analyze the amounts of back pay due.
(c) Post at its principal place of business in Louisville, Kentucky,
and at the Kentucky Ordnance Works, located in the vicinity of Padu-
cah, Kentucky, and deliver to the business agent of the United Brother-
hood of Carpenters and Joiners of America, AFL, Paducah, and to
the business agent of the IAM, Paducah, Kentucky, copies of the
c WHITTENBERG CONSTRUCTION COMPANY 31
notice attached hereto marked "Appendix." e Copies of such notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by Respondent's representatives, be posted
by it for sixty (60) consecutive days thereafter in conspicuous places
including all places where notices to employees are customarily posted,
and upon the bulletin boards at the Kentucky Ordnance Works, Padu-
cah, Kentucky. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by other.
material.
(d) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges a discriminatory refusal to hire William
R. Vines.
MEMBER REYNOLDS, dissenting and concurring :
I am unable to agree with the majority that the record fails to
establish that Vines was discriminatorily denied employment. The
record shows that when Vines appeared at the Respondent's premises,
he was stopped by Chief Guard Rogers, who was advised of Vines'
IAM membership and desire for employment. Whereupon Rogers
called Foreman Downs and then reported to Vines, according to the
latter's testimony, that Downs stated that Vines would have to join
the Carpenters before securing employment. Contrary to the majority,
Vines' testimony as to the statements attributed to Downs cannot be
lightly brushed aside as hearsay, for his testimony is strongly corrobo-
rated by the majority's finding, with which I concur, that the Respond-
ent in fact had adopted a discriminatory policy of hiring only members
of the Carpenters and pursuant thereto had discriminatorily refused
to hire 15 named members of the IAM. In any event, the record as a
whole convinces me that Chief Guard Rogers, in intercepting Vines
as a job applicant belonging to the IAM and representing to him
that membership in the Carpenters was a condition of employment,
was acting within the scope of his employment and in furtherance of
the Respondent's otherwise established discriminatory hiring policy.
I would therefore impute Rogers' action and knowledge to the Re-
spondent.'
Under all the circumstances, I would find, like the Trial Examiner,
that Vines was also a victim of the Respondent's discriminatory
hiring policy.
In all other respects, I concur in the majority opinion.
e 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."
7 See my dissenting opinion in M. W. Kellogg Company, 94 NLRB 526.
'32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
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 and applicants for
employment, International Association of Machinists, and United
Brotherhood of Carpenters and Joiners of America, AFL, of Paducah,
Kentucky, and vicinity that :
WE WILL NOT discourage membership in INTERNATIONAL ASSO-
CIATION OF MACHINISTS, or in any other labor organization,
or encourage membership in UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS, AFL, or in any other labor organization by
refusing to employ properly qualified applicants, or in any other
manner discriminating in regard to their hire or tenure of em-
ployment, or any term or condition of their employment, except
insofar as such activity may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exercise
of their right to self-organization, to form labor organizations,
to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all 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.
WE WILL snake whole Cecil Weitlauf, W. L. Choate, Anthony
Daniel Kelly, James Edwin Smith, William Earl Sloan, Ben W.
McKinney, Raymond K. King, James Bradley Smith, Z. C. Her-
rold, Sam J. Sloan, Reginald Purcell, A. L. Ham, John W.
Dowell, Earl D. Terry, and Fred O. Rupche for any loss of
pay suffered as a result of our discrimination against them.
WHITTENBERG CONSTRUCTION COMPANY,
Employer.
By -----------------------------------------
(Representative ) (Title)
Dated ----------------=---
WHITTENBERG CONSTRUCTION COMPANY 33
This notice must remain posted for 60 consecutive days from the
4
-date hereof and must not be altered, defaced, or covered by any other
material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by International Association of Machinists, herein
called the IAM, the General Counsel'of the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional.
Director for the Ninth Region (Cincinnati, Ohio), issued a complaint dated
November 16, 1950, against Whittenherg Construction Company, Louisville,
Kentucky, herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint, the charges, and notice of hearing were duly
served upon the Respondent and the IAM.
With respect to unfair labor practices, the complaint alleges, in substance,
that the Respondent: (1) By its officers and agents, refused employment to
those persons listed in Appendix A, attached hereto, on or about the dates listed
opposite their names, and on various dates thereafter has refused, and is refusing,
to employ such persons for the purpose of discouraging membership in, sympathy
for, and activity for the IAM, and for the purpose of encouraging membership in
United Brotherhood of Carpenters and Joiners of America, AFL, hereinafter
called the Carpenters; and (2) by said acts has interfered with, restrained, and
coeiced its'eniployees in the exercise of the rights guaranteed in Section 7 of
the Act.
On November 30, 1950, the Respondent filed its answer wherein it admitted
the interstate character of the Respondent's business operation but denied the
commission of the alleged unfair labor practices.
Pursuant to due notice a hearing was held in Paducah, Kentucky, on Jan-
uary 29 and 30, 1951, before the undersigned, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondent
were represented by counsel and the TAM was represented by an IAM repre-
sentative. All parties participated in the hearing and were afforded an
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues The parties were afforded an oppor-
tunity to argue orally before the undersigned, which was waived. The parties
were advised that they might file briefs and/or proposed findings of fact and
conclusions of law with the undersigned. A brief was filed by the General
Counsel The General Counsel's motion to conform the pleadings to the proof,
in mirror variations, such as the spelling of names, and so forth, was granted
without objection.
During the hearing, the undersigned reserved rulings on motions by counsel
for the Respondent to strike the testimony of General Counsel's witnesses.
Ralph Pryor, Charles Henry Russell, Otto Bechtold, and Edgar Childers ; and a
further motion to strike General Counsel's Exhibits Nos. 2 and 3 from the
record. The undersigned now rules that said motions be, and they hereby are,
denied. '
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Whittenberg Construction Company is a Kentucky corporation with its prin-
cipal offices and place of business in Louisville, Kentucky, and is engaged in the
general construction business. All of the stock of the Whittenberg Construction
Company is owned by H. G. Whittenberg and W. M. Irion, copartners doing
business as Whittenberg and Irion. The same partnership owns another cor-
poration, Whittenberg Construction Corporation, a general construction firm
with offices and principal place of business in Louisville, Kentucky. During
the course and conduct of its business, the Respondent, at all times material
herein, has caused a substantial quantity of the materials, supplies, and equip-
ment used by it to be purchased and transported in interstate commerce into
the State of Kentucky from and through States of the United States other than
the State of Kentucky. Also at all times material herein, the Respondent per-
forms and has performed a substantial amount of services for companies engaged
in interstate commerce. Its annual purchases of supplies and equipment for the
year are approximately $168,000, of which approximately $125,000 worth come
from sources outside the State of Kentucky. During the same annual period,
the Respondent's gross income is approximately $599,000 all of which is derived
from work performed within the State of Kentucky ; but approximately 45 per-
cent of such sum represents work performed for firms engaged in interstate
commerce ; and during such, times, the Respondent has been a principal con-
tractor for the Government of the United States in performing services in con-
nection with maintenance of the Kentucky Ordnance Works, a munitions plant
operated by the General Services Administration, an agency of the Government
of the United States. A contract for such service provided for payment to the
Respondent of approximately $214,000 for services and materials ; and 7 per-
cent of such sum represents the value of materials purchased outside the State
of Kentucky' The undersigned finds that the Respondent is engaged in inter-
state commerce as defined by the Act and that it will effectuate the policies
thereof by the Board's assumption and exercise of jurisdiction herein.
It. THE LABOR ORGANIZATION INVOLVED
The International Association of Machinists is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory refusal to employ
1. Sequence of events leading to such refusals
During World War II, the United States Government caused an ordnance
works to be constructed near Paducah, Kentucky, known as the Kentucky Ord-
nance Works, hereinafter called KOW. Such construction took place in or about
1 The findings in this section are based upon stipulation of the parties and the allegations
of the complaint as admitted by the answer . In this connection see Harvey Stoller d/b/a
Richland Laundry Dry Cleaners , 93 NLRB 680.
. WHITTENBERG CONSTRUCTION COMPANY 35
1942 or 1943, and was performed by building and construction craftsmen affiliated
with the American Federation of Labor, hereinafter called AFL, under "strictly
a closed-shop. . . ." All machine work done in such original construction was
performed by millwright members of United Brotherhood of Carpenters and
Joiners of America, AFL, hereinafter referred to as Carpenters-Millwrights, or
either, under the supervision of George Francis Downs as millwright foreman'
On June 28, 1949, the Respondent entered into a contract with the Public
Buildings Administration, Federal Works Agency, under the terms of which
the Respondent was to put KOW in a standby or layaway condition. Charles
Russell Bryant s was the Respondent's superintendent in charge of construction
at the KOW project.
Bryant arrived at Paducah on or about July 12, 1949, or some 2 weeks after
the execution of the contract. Upon his arrival Bryant found the Electricians
and Pipefitters, AFL, of the area, were on an area strike. Since the services of
both the electricians and pipefitters were necessary in the KOW project, work
could not be started on the project until the strike was settled.4
Prior to his hiring of any employees, Bryant met with the Paducah Building
and Construction Trades Council, A. F. of L., herein called the Council' At this
meeting between Bryant and the Council, the latter was represented by W. B.
Sanders, secretary of the Council and business manager for the Iron Workers
Union, W. G. McCloud and Homer Allen for the Electrical Workers, a Mr. Hall
for the Steamfitters and Plumbers Organization, and Jodie Vaughn for the Car-
penters.'
At this first meeting between the business agents of the Council and Bryant
held in the Building Trades Hall, wages as they pertain to each craft, and other
conditions of employment, and the number of men to be employed on the project
were discussed. While the record discloses that Bryant could not, or would not,
enter into a written agreement with the Council it was tacitly agreed and under-
stood that Bryant would hire only A. F. of L. craftsmen on the KOW job.
Under date of July 28, 1949, Charles R. Raper, facilities superintendent for the
General Services Administration, a governmental agency, issued the following :
OFFICE MEMORANDUM U. S. GOVERNMENT
To : Mr. W. M. Rogers, Chief Protection 7-28-49
From : Charles R. Raper
Guard on duty Post #1 shall be instructed that no person or persons
seeking employment is to be admitted without Union referral card.
Effective with issuance of this memorandum Mr. Charles E. Koclanes and
Mr. M. C. McDonald will sign passes.
Signed Charles R. Raper,
CHARLES R. RAPER,
Facility Superintendent.
2 As is stated in more detail below, Downs was employed as such a millwright foreman
by the Respondent herein in connection with the execution of the contract and the work
out of which the labor dispute involved in the instant case arose.
8 The parties stipulated that both Bryant and Downs were supervisory employees as
defined by the Act.
4 The parties stipulated that this strike was settled about October 1, 1949.
5 Bryant in his testimony denied ever meeting with the Council but did admit meeting
with the business agents of the Council "unofficially." Bryant's credibility as a witness
will be discussed in more detail below.
9 Vaughn professed to be unable to recall when such meeting with the Council and Bryant
tool; place . Vaughn 's further testimony , referred to hereinafter , will be discussed In
detail below.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raper testified that the order was issued as a part of his over-all security plant
policy ; and that the order, which was shown to Bryant before its issuance, would
not have been issued in the form which it was had he understood that the Re-
spondent Company hired nonunion as well as union employees!
Irwin M. Griffin, an IAM member for 24 years, held the position of special
organizer for the IAM at Paducah and vicinity during 1949. Prior, to August
23, 1949, Griffin found a note on his desk from the Teamsters to the effect that
Bryant had called in for an auto mechanic ; that the Teamsters had informed
Bryant that the Machinists had jurisdiction over auto mechanics and requested
that Griffin call Bryant. Griffin called Bryant pursuant to advice from the
Teamsters and was informed that Bryant wanted an auto mechanic familiar
with Chevrolet and Ford trucks ; Griffin told Bryant he had one who would fill
the job and sent R. L. Sheldon out to the KOW project, where he was subse-
quently employed.
On or about August 23, 1949, Griffin contacted Bryant on the grounds of the
ROW and also in Bryant's office. Griffin informed the latter that he represented
the Machinists and understood that there would be quite a bit of mill work to be
performed on the KOW project, stated that he would like to place his men on
such job; that the IAM had approximately 500 well-qualified machinists who
were furloughed and he wanted them assigned to the machinist work on the job.
Bryant asked if the IAM was associated with the Council and was informed
that it was not. Griffin testified :
Q. Was anything else said?
A He first said he didn't particularly care what craft done the work, but
if the machinists worked on the job, they would have to come through the
Carpenters Organization and be referred to him by them.
Q. Do you recall anything else of that conversation?
A I told him I was afraid that if they had to come through the Car-
penters Organization there wouldn't be very many of our fellows get work
on the job. He said he was sorry but that was the deal. I told him we
didn't consider that Carpenters jurisdiction. But he said the fact that he
had an agreement with the Building Trades Council to furnish him his
men, and he made the statement clear, and very clear, that the reason
why he made it a practice, when he went into an area as a stranger, in
order to get sufficient capable help, he found that by contacting the Build-
ing Trades Department would help him out in getting men ; and that was
the reason he did it.
*
Q Did he make any suggestion to you as to what you could do?
A. He did.
Q. What did he tell you to do?
A. He said he would like for me and the Carpenters' business agent to
get together and work out some agreement whereby it would relieve him
from any trouble out there. He was afraid to put machinists in there,
the Carpenters would picket his job, and I said I didn't think it would
hurt him if the Carpenters did picket him because I thought all the rest
of the crafts would cross the picket line-wouldn't honor it. He said if
' It should be n^plted that Raper's memorandum was promulgated prior to the time when
the JAM machinists claimed the millwright work.
WHITTENBFIRG CONSTRUCTION COMPANY 37
they put a picket line on here the Carpenters would picket every other job
in the State of Kentucky 8 and tie him up on every other job he had in the
state.
Q. Do you recall anything else?
A. He suggested that Mr Vaughn and I get together and work out some-
thing whereby we could relieve him of any responsibility of any trouble.
On the following day, August 24, Griffin contacted Vaughn and informed him
that he understood from Bryant that Vaughn had to refer the Millwrights that
were employed on the KOW job ; Vaughn stated "That was right" ; to which
Bryant replied, "Mr Vaughn, do you know that is our work. That is strictly
machinist work," and that the TAM had 500 workers out of work at that time.
Griffin then proposed to Vaughn that he give Vaughn the names of a number
of machinists with the understanding that for each carpenter-millwright
Vaughn referred to the job he would refer one machinist. Vaughn replied, in
substance, that he had all the men lined up at that time who could be put on
the KOW job. Griffin then proposed to Vaughn and subsequently to Sanders,
the Council's secretary, that the TAM join the Council. Vaughn replied that he
was not an officer of the Council and referred Griffin to Sanders. Sanders
stated that inasmuch as the TAM- was not affiliated with the A. F. of L, it
would be impossible for the TAM to join the Council.
On or about August 29 or 30, 1949, and before the then-existing strike of the
Electricians and Pipefitters had been settled, Griffin went to Bryant's residence
and reported to the latter that he had contacted Vaughn who refused to agree
to send any TAM members out to the job. Griffin then asked if he could send TAM
members out to KOW to contact Bryant ;
He [Bryant] said he couldn't do it. He was sorry, just as sorry as he
could be, but they would have to come through the Carpenters Local, because
he had made an agreement with those fellows and couldn't get out of it. I
asked him if he knew that it was against the Unfair Labor Practices to
have preferential hiring, and he didn't say he did or, he didn't. I advised
him that if at least both of our men were not placed on the job, we would
prefer Unfair Labor charges, and he said he couldn't help it.
On or about September 15, at Griffin's suggestion Claimant McKinney and
Dallas Bradford, also a machinist, called on Vaughn and requested that lie
send them out to the KOW job. Vaughn said he could not do so and when Brad-
ford asked if he and McKinney could join the Carpenters and be sent out, Vaughn
replied, "No, they could not hold two cards", and
That even if he would let us join, he would have to take care of his men first.
Vaughn then stated that he had 18 or 20 men available for the job. Also on or
about September 15, Claimant William E. Sloan called on Vaughn and asked if
he could get a Carpenters' card, stating that he was a machinist and would like
to get a job and go to work. Vaughn replied, ". . . there wasn't any machinists
going out there. There was (sic) going to be millwrights."
Claimant Reginald Purcell called on Vaughn with a request that he be assigned
to the KOW job and was informed by Vaughn that the latter had.enough unem-
ployed men to take care of the job, and refused to take Purcell's application for
membership.
8 The record discloses that the, coowners of the Respondent Company, - In addition to
owning such Company, also own and operate another corporation engaged in construction
work in Kentucky The record further shows that the Respondent, in the Louisville, Ken-
tucky , area , operates under a written contract with the AFL Building and Trades Council
of Louisville.
974176-52-vol. 96-4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime during the latter part of September or the early portion of October
1949, on an occasion when Bryant met with the business agents of the Council
at the KOW project, he requested Vaughn, as business agent for the Carpenters
and Millwrights, to get the jurisdictional dispute between the Carpenters-Mill-
wrights and the Machinists thrashed out. The record discloses however, that
Vaughn made no effort to adjust the jurisdictional dispute with the Machinists ;
on the contrary he insisted that all millwright jobs should be filled by Carpenters-
Millwrights.
On or about October 12 Griffin went to the KOW plant and got in touch with
Bryant. He informed Bryant that his information was that as of October 6
some five or six millwrights had been put to work. Bryant then informed Griffin
that he had hired George F. Downs as a millwright foreman and had delegated
to him the full authority and duty-of employing all necessary personnel necessary
to perform the millwright or machinist work ; that Downs had been instructed
not to hire any men through either the Carpenters Local or the Machinists Local,
inasmuch as Griffin and Vaughn had not been able to reach an agreement on
the jurisdictional dispute.
Following the above meeting with Bryant, Griffin telephoned Vaughn. In this
connection Griffin testified :
Q. Can you tell us what that conversation was?
A. Yes. After I learned from Mr . Bryant that he had informed Mr. Downs
not to hire any men out of either local , I called Mr. Vaughn and told him,
and said , "Brother Vaughn, do you know we are getting a run-around on
this job at the KOW?" He said, "No ; what do you mean ?" I said , "Do you
know he has hired a fellow Downs as foreman-millwright foreman-and
he is hiring men from Cairo and Benton, and is not hiring men from our
organization , or yours either ?" And he said , "Mr. Griffin , Mr. Downs is a
member of our organizations and he will look after our interests."
During the hearing Respondent introduced in evidence a document as follows :
OFFICE MEMORANDUM
To : George F. Downs, Millwright Foreman . Date : Oct. 5, 1949
From : W. R. Bryant, General Supt.
Subject : Millwrights, Employment Of-Project Contract WAL pb=6107
After you have made a survey of the processing to be done on this project,
it is requested that you hire sufficient number of qualified workmen to
perform this work within the time limitation allotted by General Service
Administration to complete.
There can be no discrimination as to Race, Color, Creed, or Religion and
all men that you contact or hire are not to be questioned about their affilia-
tions with labor organizations, or whether they are members.
It is expected that you will adhere strictly to this policy.
Yours truly,
(S) W. R. BRYANT, General Supt.,
Whittenberg Construction Co., Kentucky Ordnance Works,
Paducah, Kentucky.'
9 The record discloses without dispute that Downs was millwright foreman when KOW_
was first constructed ; that such construction was had under a closed-shop agreement by
AFL Building and Construction Trades Council and Rust Engineers Co. ; and that approxi-
mately 80 percent of the millwrights employed on the KOW project in 1949-1950 who had
been employed by Downs on the initial construction were Carpenters -Millwrights members
of necessity . Bryant testified that he learned of Downs' prior work on KOW and em-,
WHITTENBERG CONSTRUCTION COMPANY 39
It should be noted that the above communication is signed as "W. R." Bryant.
The record discloses that Bryant's name as testified to by him is "Russell"
Bryant ; and his name appears elsewhere in the record as Charles Russell
Bryant.
When Bryant informed Griffin that Millwright Foreman Downs was to do
all the hiring directly and not through either the Carpenters local or the Ma-
chinists local, Griffin asked Bryant if he could send IAM members out to KOW
as individuals and let them "hire in as such" and also asked that he be permitted
to accompany the men and listen to them being interviewed. Bryant replied
that the men would not be interviewed in Griffin's presence, and if they did
come out to come alone, or together, "as long as I (Griffin) wasn't in the crowd."
2. The machinists' request for employment ; Respondent 's refusal to hire any
machinists for millwright work
As the result of a rumored shutdown, which later came to pass, several IAM
members employed by the Illinois Central Railroad Company, at Paducah, Ken-
tucky, and vicinity, contacted Griffin, who, as is detailed in part hereinabove,
sought to line up the machinist and millwright work at the KOW project for
members of his organization. He recommended that the machinists call on
Bryant at the KOW project. On or about September 16 a group of eight ma-
chinists," riding in Choate's station wagon, drove to the KOW project in an
attempt to contact Bryant. They spoke to the guard at Post No. 1, who informed
them where Bryant's residence was located and suggested that the group con-
tact him there.
The group drove to Bryant's residence and waited until he arrived. There-
after, with Kelly as the chief spokesman for the group, Bryant was informed
that the group were all machinists, owned machinists' tools, were members of
the IAM, and having been informed that Bryant would need men for the work
that was about to start. Bryant replied that as a result of the strike of the
Electricians and Pipefitters he did not know when the work would get under
way and indicated that it could not get under way until the strike was settled.
Kelly asked if he might have Bryant's telephone number and call him later.
Bryant gave Kelly his telephone number. Bryant was asked if he would take
applications of the group but refused to do so because there were no jobs open as
the strike was still on, but stated there would probably be jobs open later.
Subsequently and on October 24, 1949, Weitlauf, King, James Bradley Smith,
and McKinney called on Bryant at KOW. On this occasion Weitlauf acted as
ployed him upon the recommendations of persons then connected with KOW ; delegated to
him full authority to employ necessary workmen to complete the KOW job ; that Downs
was hired under instructions above set out as a result of the jurisdictional dispute between
Carpenters-Millwrights and IAM-Machinists; and that he (Bryant) did not know whether
Downs belonged to the Carpenters -Millwrights or the IAM. Downs testified that as to the
34 or 35 millwrights employed, that he did not know whether they were members of the
Millwrights or Machinists , as he had "not seen their books." Downs admitted that he
was a member of the Carpenters -Millwrights , AFL and had deposited his union book with
the Paducah local before going to work. Bryant testified that he has been a member of
the AFL Carpenters since about 1919, but as a construction superintendent for 11 or 12
years past has not been required to pay dues . The record discloses that none but Car-
penters-Millwrights members of the Paducah local were employed on the millwright and
machinist work performed by Respondent. On the basis of the foregoing and the record
the undersigned cannot and does not credit the testimony of either Bryant or Downs
wherein they disclaim knowledge that all or any of the millwrights hired were members
of Carpenters-Millwrights, AFL or that it was tacitly agreed and understood that none
but AFL millwrights should be employed on the KOW project.
10 Weitlauf , Choate, King, James Bradley Smith, James Edwin Smith , McKinney , William
E. Sloan , and Kelly.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spokesman. The group waited at the plant gate until Bryant came out and
then talked to him. Weitlauf stated that he had heard the strike was settled,
that the Company would need men, and that the group then present would like
to go to work. Bryant replied in substance that he had hired Downs as mill-
wright foreman to take care of the hiring of the men ; that it would be all right
for the group to come out and see Downs at the plant the next day; and on this
occasion asked if the group then present were qualified mechanics. Weitlauf
replied that they were.
On the following day, October 25, King and James Bradley Smith went to the
KOW plant and told the guard at the gate house that Bryant had said that they
might come out and see Downs that morning. A second guard then went to
the office to see Downs and returned and reported that Downs said he did not
need any men. King and Smith continued talking to the second guard and
insisting that they were entitled to see Downs as a result of Bryant's statement
of the day before, whereupon the second guard made a second trip to the office
after which Bryant came to the gate and stated that he did not have things lined
up as yet. Smith then asked if it would be all right to telephone Bryant later
on that week and Bryant replied in the affirmative. Bryant also stated on this
occasion that they had 18 millwrights on the job; that he was not accepting men
from either the Carpenters or the Machinists locals as such. When Smith in-
quired as to when Bryant thought the matter would be straightened out, the
latter replied he thought the first of the (next) week. When Smith asked if it
would be all right to call at his residence, Bryant stated, "Yes, it would."
On October 31 or November 1 Smith called Bryant•by telephone, stated that he
was one of those who had been out previously, and asked if things had been
straightened out. Bryant replied, "Downs and I have talked it over and decided-
that the 18 men are all we are going to need."
The record shows without dispute that after October 24, 1949, the Respondent-
hired 16 millwrights, none of whom were machinists and all of whom were car-
penters-millwrights and members of the Carpenters local in Paducah
a. Claimants who applied to Bryant for employment
Weitlauf has been a member of the IAM some 6 or 7 years; he owns machin•
ists' tools ; and was and is qualified to dismantle machinery. As set forth above,-
Weitlauf was in the group who called on Bryant on September 16 at which-
Kelley acted as the chief spokesman for the group of eight. He was also in the
group of four who called on Bryant on or about October 24 also as found above,
and on which occasion he acted as spokesman.
Weitlauf's third meeting with Bryant took place on or about November 3, 1949,
on which occasion he called at KOW in the morning in company with Claimant
Dowell. On their arrival at Post No. 1 guardhouse at KOW entrance, the guard-
at first refused to let Weitlauf and Dowell enter the premises. Dowell in-
formed the guard that Bryant had, a few days previous (the October 24 meet-
ing) told the group then present to tell the guard to let any members of the group-
in with a result that the guard issued a pass to Weitlauf and Dowell. When
the two entered the plant and got in touch with Bryant, Dowell asked him
if he was using any millwrights and Bryant replied no that he had all he could
ever use." -
"After the date of this meeting the Respondent employed 16 carpenters -millwiights^
between November 8, 1949, and, Deeembe4 19;: 1949, all,of.: whom were members of the-
Carpenters and none of whom were member of the IAM.
WHITTENBERG CONSTRUCTION COMPANY 41
Dowell had been a member of the IAM since 1934; owns machinist's tools ; and
is qualified to dismantle machinery. At the suggestion of Griffin, in company
with Claimant Ham on October 24, Dowell went to the KOW plant with a letter
of referral which had been given to him by Griffin. He presented the letter to
a guard and received a pass for himself and Ham to enter the plant. In their
talk with Bryant, the latter stated (after Dowell had handed him Griffin's letter
of referral), that he had no openings for millwrights that they were not using
millwrights on the job as they were "just cleaning up the plant." Dowell then
informed Bryant that he had just come off a job at an ordnance works at the
U. S. Naval Gun Factory at Louisville, Kentucky. Bryant then stated that
Dowell would have to talk to Downs. Bryant further stated that since he had
been out of town he was busy and could not take care of Ham and Dowell and
left them.
Thereafter and on about October 27 Dowell returned to the plant alone and
called on Bryant. The latter said Dowell was to come back the next week
.and the latter insisted that Bryant had told him to come back the latter part
of "this" week. Bryant then informed Dowell that he was sorry that they
were full up and did not need anyone. Dowell reiterated the fact that he had
just come off a similar job at Louisville, was qualified, and that Paducah was
]iis home.
As is stated in connection with Weitlauf's case next above, Dowell also called
on Bryant on or about November 3, with the results detailed hereinabove.
Hain, 63 years of age, has been a member of the IAM since 1910; he owns
machinist's tools, such as calipers, squares, rules, "and such as that," and
"works on the floor." On October 23, 1949,12 he went to the KOW project and
requested the guard to permit him to enter the plant to see Bryant. The guard
informed him that he must get a referral letter from the business agent of his
Union. On the following day, October 24, Hain called on Griffin, IAM repre-
sentative, in company with Dowell. Griffin gave Hain and Dowell a joint letter
of reference which they took with them on that morning when they went to
the KOW project where Dowell presented the letter of referral to the guard
who issued passes to both of them to enter the plant.
When they entered the plant, Dowell presented the referral letter to Bryant,
who interviewed him separately and apart from Ham. At the conclusion of the
interview between Bryant and Dowell, Ham entered Bryant's office where he
asked Bryant if he had a job for a machinist or millwright. Bryant replied
that he was sorry, but that he was filled up, and asked Ham if he belonged to
the "order." Ham replied that he belonged to the AFL Machinists.' Bryant
told Ham that he might return to the KOW project at a later date. This was
the only occasion on which Ham made application for employment.
James Bradley Smith has been a member of the IAM about 8 years, owns
machinist's tools, and is qualified to dismantle machinery. Smith was in that
group which called on Bryant at his residence on or about September 16, 1949,
and was also present at the meeting of October 24 at which Weitlauf, King, and
McKinney were also present, all as is detailed above. On October 27 Smith,
in company with Claimant King, went to KOW project and Post No. 1 where
they informed the guard that they were there as Bryant had said they could
either see Downs (in the office) or he would see him at the gate. The guard
stated that he would do what he could. A second guard was sent to the plant
13 Ham could not recall this date, but it developed that on October 24, in company with
Dowell, he returned to the KOW project and had an interview with Bryant.
33 At the time of this interview the Machinists were not affiliated with the AFL, but it
appears at the time Ham joined the IAM, it was then affiliated with the AFL.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and returned and stated "... Downs was busy and couldn't see us"; when
Smith and King insisted that Bryant had stated they could see Downs, the
guard returned to the plant a second time, after which Bryant came to the
gate and Smith stated he and King were the men "who had been over seeing"
Bryant the other night and that they still needed work. Bryant replied that they
did not have things "straightened out at present like he wanted to." And added
that they had 18 men on the job. Bryant further stated that he was not accept-
ing men from either the Carpenters or the Machinists locals as such.
On October 31 Smith telephoned Bryant and asked if things had "straightened
out." Bryant replied, "Downs and I have talked it over and decided that the
18 men are all we are going to use." 76
Kelly, 29 years of age, has been a member of the IAM off and on for 21 years ;
he owns machinist tools, and is qualified to dismantle machinery. As found
and stated hereinabove, Kelly was among the group of eight who called on
Bryant on or about September 16, 1949, and was the chief spokesman on this
occasion. On or about October 1, Kelly called Bryant at the latter's residence
and introduced himself as one of the group who had talked to him September 16
concerning employment. Kelly stated that he was a machinist, had the nec-
essary tools, and had been in the (machinist) business for years. He asked
in view of the fact that the strike was over, if Bryant could use him on the
KOW project. Bryant replied, "Well, not at the present time." Bryant then
added that he did not care what crafts were employed so long as they had
the tools.
On or about October 7, Kelly again called Bryant who stated he could not put
on anybody at that time. On a subsequent date Kelly made a third call but
the lady who answered the phone stated that Bryant was out of town.
James Edwin Smith has been a member of the IAM for about 8 years ; he owns
machinist tools and is and was qualified to dismantle machinery. He was one
of the eight complainants who called on Bryant on September 16 at the latter's
residence at which time Kelly was the chief spokesman for the group, all as is
found in detail hereinabove. Smith was also in that group that called on Bryant
on October 24 at which time Weitlauf acted as spokesman. Smith who was in
,the hearing room at all times during the hearing testified that he had heard
the testimony of other claimants who attended both the September 16 and the
October 24 meeting and his recollection of events is substantially the same as
testified to by other claimant witnesses 1°
King has been a member of the IAM for about 8 years ^ he owns machinist
tools and is qualified to dismantle machinery. As has been found in detail
hereinabove, King was among the group who called on Bryant at his residence
on September 16; he was also with the group who called on Bryant'at the plant
on October 24, at which time Weitlauf acted asl spokesman. King was also at
Bryant's residence for a second time with James Bradley Smith on or about
14 The record shows that Bryant made this statement on a number of different occasions,
but inasmuch as the record discloses that only carpenter -millwrights were hired and no
machinists were employed , such statement , in the opinion of the undersigned, was mere
lip-service to the Act.
15 As stated hereinabove, subsequent to such date, Respondent hired 16 additional mill-
wrights, none of whom were machinists.
With reference to Smith's qualifications he testified :
Q. During either of those two meetings, were you ever personally asked by Mr.
Bryant about your qualifications for the job out there?
A. No, sir ; I don't think he asked us-no, he just came out and said in the conver-
sation the ones he hires should be qualified . He didn't ask personally . Of course, it
was brought out when we introduced ourselves. Mr. Kelley said we were qualified-
machinists.
WHITTENBERG CONSTRUCTION COMPANY 43
October 25 at which time the events and episodes found in connection with James
Bradley Smith's case detailed above occurred and as testified to by King were
substantially the same as disclosed by Smith's testimony.
Herrold, 50 years of age, has been a member of the IAM off and on for 23
years ; he owns machinist's tools and is qualified to dismantle machinery. On
October 10, 1949, at the suggestion of Griffin, Herrold went to the main gate of
the KOW project, spoke to the guard and told him that he wanted to enter the
plant to see Bryant. The guard with whom Herrold was acquainted told the
latter that he could not enter the plant must wait outside, and "that they
wasn't seeing anyone. .. ."
The guard then told Herrold that Bryant was at Kevil and if he would wait
there at the gate the chances were he would get to see Bryant "when he comes
in."
When Bryant drove up in his car, the guard talked to him, after which Bryant
motioned Herrold to come to his car and he did so. Herrold told Bryant that
Griffin had called him by telephoning the night before and informed him that
"KOW were hiring." Bryant replied that he did not need anyone then, and did
not know when he would need further help.17
McKinney has been a member of the IAM for about 5 years ; he owns machinist
tools and was and is qualified to dismantle machinery. As detailed herein-
above, McKinney was among the group that called on Vaughn about the middle
of September 1949; he was also a member of the group of eight who called on
Bryant at the latter's residence on September 16, on the events such meeting
has been found and set forth hereinabove ; and he was also a member of that
group, that met with Bryant, on October 24, at which meeting Weitlauf was
spokesman for the group. The events of this meeting have been sufficiently
found and detailed above.
b. Complainants who applied to both Bryant and Downs
Choate has been a member of the Machinists about 5 years ; he owns and has
his own machinist tools and is and was qualified to dismantle machinery. He
was among the group of eight who called on Bryant on September 16. On or
about October 12 or 13 he drove together with Sam J. Sloan and Earl Sloan to the
KOW project in the morning and they were told by the guard that they could not
enter the premises without a letter of referral from the union business agent.
While Choate and the Sloans were at the gate two other men arrived at the gate
and said they did not have a letter from their business agent, because he was
sick. They received a pass from the guards and went into the plant and shortly
thereafter returned and surrendered their passes. About 30 minutes later
Bryant and Downs came to the gate. Choate introduced himself and said
that he understood they were hiring men out there and that they were looking
for machinist work. Bryant said, "We have 6 men coming in now. Have to
put these men to work before I hire any more." He then said, "I will take your
phone number and give you a ring when I need someone." Choate then gave
Bryant his telephone number ; when the two Sloans offered to give their telephone
numbers, Bryant said, "No, I will contact Choate and he can let you all know."
Sam J. Sloan is 54 years of age, and has been a member of the IAM during
different periods. On one occasion he was a member for 5 years when working
on the Gilbertsville Dam after which he returned to Paducah and rejoined the
17 The record discloses that 4 millwrights were hired on October 12 or 2 days after Herrold
applied for a job. In all , 26 men were hired after Herrold 's application.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
local TAM "something like four years ago" ; he owns machinist tools and is quali-
fied to dismantle machinery. He was in the group composed of his son, William
E. Sloan and Choate which case is discussed next above. His testimony in con-
nection with the meeting of October 13, 1949, with both Bryant and Downs is
substantially identical with that of Choate. This was the only occasion on which
Sloan made application for employment with the Respondent.18
William E. Sloan is 37 years of age, and has been a member of the TAM for
18 or 19 years ; he owns machinist tools and is qualified to dismantle machinery.
Sloan was referred to the KOW project by Griffin and on or about September 13
called Bryant by telephone about 5: 30 or 6 o'clock in the evening. When
Bryant answered the telephone, Sloan asked him if he needed any machinists or
millwrights stating that he was a machinist and could also do millwright work.
Bryant "said at that time he didn't need anyone, that I should contact him in
two or three weeks when he might need someone " On the occasion of the tele-
phone call, Bryant asked Sloan if he had tools. Sloan replied that he had.
Sloan was among the group of eight who called on Bryant on September 16 with
the results found in detail hereinabove. On or about September 25 or 26 Sloan
went to Bryant's house at a time when a "group of fellows were just leaving"
and after the group had left, Sloan asked Bryant if he needed a machinist or
millwright Bryant replied, "Not at the present time," that he had a number of
men working and might need more later on On October 13 Sloan went to the
KOW project and to the gate with his father, Sam Sloan, and Choate., The
facts of this meeting are described in connection with Choate's case detailed
above.
c. Cladlmamts who contacted Downs
Purcell, 45 years of age, has been a member of the TAM about 13 years ; he
owns machinist tools and is and was qualified to dismantle machinery. On or
about October 10 Purcell passed by the KOW gate about 8 a. in. and asked the
guard whom to see with reference to obtaining a job. The guard informed him
that he would have to be referred by the Union, but did not designate a par-
ticular union. Purcell then proceeded to Paducah and got in touch with Griffin
who advised him to see either Bryant or Downs and also mentioned Vaughn's
role in connection with Carpenters-Millwrights.
On October 12, Purcell went alone to the KOW project arriving about 7: 15
a. in. The guard told, him that it would be "okay" for him to see Downs when
the latter came to the plant that morning. Downs arrived about 7: 30 to 7: 45
a. in. and Purcell approached him and asked for a job.39 Downs informed Pur-
cell that he had all the men he needed then ; that he was figuring on more mill-
wrights there ; and when he needed them.he would be glad to contact Purcell
"and possibly give" him a job.
On October 17 or 18 Purcell again returned to the KOW project alone and
arrived at the guardhouse about 7: 30 a. in. When Downs arrived for work
Purcell again got in touch with him at the gate, at which time there were 8
other persons present. Downs. took 6 men "along with their tool boxes" into
the plant. Purcell asked Downs what craft the 6 men belonged to and Downs
18 It should be noted , however , that Bryant took Choate ' s telephone number and stated
that he would give him a ring when he needed someone ; and Bryant also stated to the
Sloans, when they offered to provide their telephone numbers, " . . I will contact Choate
and he can let you all know." As stated hereinbefore , when the Sloans started to give
Bryant their telephone numbers, the latter stated, "No, I will contact Choate and he can
-let you all know."
29 Purcell testified that he had known Downs "for a pretty good while."
WHITTENBERG CONSTRUCTION COMPANY 45
replied that they were millwrights, and had been notified about a week before
to report for work. On October 24 Purcell again contacted Downs by arriving
at the plant early and again asked for a job. Downs stated that he had 18
or 20 millwrights and it looked like that would be all he would need. On October
25 or 26 Purcell got a letter of referral from Griffin which he presented to
the guard, and was permitted to enter the plant where he saw Bryant. He then
presented Griffin's letter of referral to Bryant, who iterated Downs' last state-
ment to the effect that they had 18 or 20 millwrights or about all they could
use.° ( Emphasis added.)
Terry, 46 years of age, has been a member of the IAM for approximatel3
15 years, owns machinist tools, and is and was qualified to dismantle ma-
chinery. On October 24, 1949, Terry, in company with Rupche and one I. E.
Kemp,21 at the suggestion of Griffin and with a letter of referral from him,
went to the KOW project about 2 o'clock in the afternoon on that day. The
three went to the guardhouse at the gate and asked the guard if they could
go into the plant to see Downs. The guard replied that he did not know where
Downs was and suggested that the three in the group stay at the guardhouse
gate until Downs left at the close of his workday, at which time the guard
said he would point Downs out to the group.
Downs came out about 4: 45 and the guard pointed him out to the 3 men.
Terry accosted Downs and acted as spokesman for the 3 men and told him
that Griffin had stated that Downs was doing some work at the KOW project
and had given him a letter of referral to use in an effort to get a job. Downs
stated that he had about 18 men working, that he did not think he would need
any more, and in the event he did need any more, he would let Mr. Griffin, the
business agent, know, and he could get hold of Terry and the others. During
the conversation Downs asked Terry how long he had been a machinist. Terry
replied that he had been a machinist "a good long time." Terry testified that
he made no further effort to contact Downs but waited for Griffin to let him
know, and "nobody ever did let me know."
Rupche, 49 years of age, has been a member of the IAM 13 years, owns ma-
chinist tools, and is qualified to dismantle machinery.
Rupche was one of the three who called on Downs on October 24, at which
time Terry was spokesman. Rupche's testimony coincides with that of Terry's,
referred to above, except that Rupche stated that Downs said he had 14 men
working at that time, whereas Terry testified that Downs said he had 18 men
working. In other respects, Rupche's testimony was substantially identical
with that of Terry's.
Vines, 54 years of age, has been a member of a local of the IAM at Paducah
for about 1 year. Part of that time he was a member of the local at Gilberts-
ville, where a certain dam was constructed, for a period of 5 years22 Vines is a
journeyman machinist, owns machinist tools, and was and is qualified to dis-
mantle machinery. About the middle of October 1949, Vines was referred to the
KOW project and Respondent Company by Griffin. He went to the project in the
middle of the afternoon to the first guardhouse at the gate entrance. In this
connection Vines testified :
Q. Will you tell us what happened when you got to the guard house?
A. The guard said I couldn't go in, and that he would call for Mr. Downs,
I said I was sent out there , see?-what my business was-to see about the
2° As noted above, Respondent hired 16 millwrights subsequent to the date of Purcell's
last visit to the KOW project.
21 Kemp is not a claimant herein, and was not called as a witness.
21 The record does not give the location of Gilbertsville, as to State or States.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job, and he said "I will give you a pass to the head guard, that's Mr. Rogers."
So I went inside then, down to the main guard house, and Mr. Rogers came
out then and talked to me about it, and he said "You can't go over on the
job at all. They don't allow anybody to come over." I told him what I
came for and he said he would talk to Mr. Downs for me.
Q. Did you tell him who sent you out?
A. I told him who sent me out.
Q. Did he do anything?
A. He went and talked to Mr. Downs, Rogers did.
Q. Were you present when they talked?
A. No, I didn't get to go over. They didn't let me over.
Q. Did Chief Rogers return?
A. Chief Rogers returned, yes.
'Q. Did he say anything to you?
A. Mr. Downs said they had all the men they wanted right now. All
they were hiring. If I wanted a job as millwright, I would have to contact
the Carpenters Union and sign up with them, and they would call me through
the Union. '
In this same connection, Chief Rogers, in part, testified :
Q. Did you ever speak to Mr. Downs after somebody had talked to you
at the gate asking. for a job as a machinist or a millwright and come back
and tell the individual that Mr. Downs said he should go through the
Union hall?
A. Not that I remember; No, sir.
Q. Were you given to understand in any way that Mr. Bryant and Mr.
Downs were hiring Union people only?
A. Well, I understood it was all coming through the different Locals, and
things like that. Now as far as who they hired, it was no concern of ours
,only the security of the plant.
Q. How did you understand that? On what basis were you given to
understand that they were doing that?
A. State that over again.
Q. I will rephrase it. I don't think it is clear. I said, You just stated
it was your understanding they were hiring through the various Locals.
A. That's right.
Q. What did you base that understanding on ; on conversations, or just
what?
A. Well, all the work I thought was going on was suppose to go through
the Locals and their business agents would call them and send them out.
That's all as far as I know.
,On cross-examination, Rogers, in part, testified :
Q. All right. Now, did you ever tell William R. Vines or anyone, did you,
who ever it was that appeared at the gate in reference to what Mr. Goldstein
stated ; that you were to carry a message back to Mr. Downs and you came
on back and spoke to the man. You never told him-whether his name was
Vines or not-that the man would have to be a millwright, did you?
A. Oh, No. I didn't know what they were hiring, or what the capacity of
the job was.
Q. That's right. And Mr. Downs never at any time told you he was only
going to recognize millwrights?
A. Not that I know of. [Emphasis added.]
WHITTENBERG CONSTRUCTION COMPANY 47
The most that may be said for Rogers' testimony is that if he did call on
Downs on behalf of Vines, and thereafter reported to the latter that' Downs
had stated that he (Vines) would have to sign up with the Carpenters and be
called through the Union, is that he does not remember so doing. The under-
signed is of the opinion that a professed lack of memory does not constitute a
denial. On the whole the undersigned credits Vines' statement and believes
Rogers gave the report to Vines as testified to by the latter. The undersigned
does not, however, conclude or find that Downs actually made the statement to
Rogers as testified to by Vines. It may well be, in view of the fact that Rogers
understood that all employees on the project were being hired through business
agents of Paducah locals, that he took it upon himself to report to Vines, what
he assumed would be Downs' statement. In any event, it is clear that Vines
made an effort to seek employment as a machinist on the project and is so
found.
As to 16 claimants whose efforts to get employment with the Respondent are
discussed herein next above, the record discloses without dispute none of them
were or had been members of the Carpenters ; and that the Respondent was
informed and advised they all were members of the IAM.'
3. Issues; contentions; conclusions
The Respondent contends in substance and effect that: (1) Inasmuch as the
Carpenters-Millwrights and the IAM failed to compose their jurisdictional dis-
pute, as recommended by Superintendent Bryant, the latter was forced to
.seek millwrights and machinists without referral from or through either Union
and secured such employees by hiring Downs as a millwright foreman with
instructions and sole authority to hire qualified workmen without discrimi-
nation as to race, color, creed, or religion, and without inquiry as to their
membership in or affiliation with labor organizations, and that Downs followed in-
structions; (2) all millwrights or machinists hired, except Downs, who was
hired by Bryant, were hired by Downs without knowledge by him or Bryant
as to their union membership or affiliation; and (3) the fact that all
millwrights and/or machinists hired proved to be members of the Carpenters
and none were members of the TAM was the result of a coincidence and the
-further fact that "They were just not at the right place at the right time."
As to contention (1), it is clear that insofar as Downs' instructions pertained
to union membership or affiliation of applicants for millwright jobs was con-
cerned he was merely required not to question applicants personally, as to such
membership or affiliation ; he was not restricted from ascertaining the union
membership or affiliation of any applicant in any manner, except by personal-
ly questioning him; nor was he prohibited from hiring or refusing to hire ap-
plicants whose union membership was known to him or was made known to
him by others than the applicants themselves. His instructions did not re-
quire him to refrain from discrimination because of union membership or lack
of it. The record contains no evidence indicating that any IAM applicant was
denied employment because of race, color, creed, or religion, but does contain
evidence, more particularly referred to below, that they were denied employment
because of their IAM membership and lack of Carpenters-Millwrights, AFL,
membership. Contention (1) as a defense as without merit and is so found.
x8 The one possible exception to this finding is Vines. It is possible if not probable,
Rogers assumed to deliver a message to Vines, which he believed would have met with
Downs' approval , but without Downs' knowledge . Since the Respondent at least acqui-
esced in the rule laid down by Facilities Superintendent Raper , that entry to the premises
would be upon union referral only, knowledge of the statements made to Rogers by Vines
may be imputed to the Respondent . It is so found.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to contention (2), Bryant testified that he hired Downs upon recommenda-
tion of persons connected with KOW who informed Bryant that Downs was mill-
wright foreman or superintendent when KOW was constructed and the machinery
that Respondent was hired to dismantle was installed. Bryant, however, testi-
fied that he did not know when he hired him, whether Downs was Carpenters-
Millwrights or an IAM machinist?' In connection with Downs' union member-
ship, he testified :
Q Mr. Downs, when you go out on a job, which takes you out of the juris-
diction of Local 812," do you always get a referral card or transfer into the
local where you are working?
A. That is right.
Q. Is that what you did when you took on the KOW job?
A. That is right.
Q. You pay dues, do you not, in the local in the area (new area) ?
A. That is a constitutional requirement of the organization.
Downs testified that he contacted seven out of eight certain millwrights person-
ally and had them come to the Paducah Carpenters' local and as to the eighth one,
he arranged to. have Vaughn call him and tell him to meet with Downs the follow-
ing day.
Downs testified :
Q. I believe you stated that you didn't know whether the men you met at
Carpenters hall were actually A. F. of L. Carpenters.
A. I did not. I never seen any books or cards n
Q. Do you think it is sheer coincidence, then, that approximately 34 or
35 men including yourself, were hired and were members of this Carpen-
ter's Union in Paducah? -
A. They weren't members of the'Carpenters Union in Paducah. They
cleared in here like I did after they went to work.
Q. You mean that some of them had to transfer their card?
A. That's right.
The undisputed and credited testimony in the record discloses that in addition
to Downs 34 Carpenters-Millwrights members of Paducah Carpenters Local
No. 559 were employed and reported to work in numbers and on dates as fol-
lows : 8 on October 6; 4 on October 12; 6 on October 24; 5 on November 8; 6 on
December 12; 2 on December 13; and 3 on December 19. All were employed in
1949. On the foregoing and the record the undersigned concludes and finds that
as to both Downs and Bryant they and each of them knew or had reason to,
believe that all millwrights hired between October 4, 1949, the date Downs was
hired, and December 19, 1949, were members of Carpenters Local No. 559, AFL,
Paducah, Kentucky.
24 This testimony is not credited by the undersigned. Downs was hired as a result of a
jurisdictional dispute between the Carpenters and the IAM. Bryant has been a construc-
tion superintendent for 11 or 12 years for a concern which the record discloses does a
considerable amount of building throughout the United States and must have known or
assumed that Downs would not have been millwright foreman when KOW was constructed
unless he belonged to the AFL Carpenters. Bryant is also an AFL Carpenter but pays no
dues when engaged as a superintendent.
a Cairo, Illinois.
28 Downs paid no dues to Vaughn during the time be was on the KOW job because his
dues were paid up for that particular period in Cairo. The latter local would reimburse
the Paducah local for the time Downs was at Paducah.
27 It should he remembered that these millwrights were a part of the group that worked
under Downs when KOW was constructed under a closed -shop contract requiring member-
ship in the Carpenters
WHITTENBERG CONSTRUCTION COMPANY 49
71
Contention ( 2) as a Respondent's defense is without merit and is so found.
A8 to contention (3), which is based upon,Bryant's testimony and the assump-
tion that neither Bryant nor Downs knew that any of the 34 millwrights employed
at the time set forth above, were in fact members of the Carpenters Local
No. 559, AFL, when employed, yet from the 34 Carpenters-Millwrights and 16 JAM
applicants or a total of 50 applicants for millwright jobs, the Respondent con-
tends that the selection of the 34 carpenters-millwrights for employment was
in no manner based upon their union membership and that the refusal to employ
the 16 IAM members was not based upon their IAM membership and that the
hirings and refusals to hire resulted as a matter of coincidence or as the result
of chance.
If the testimony of Bryant and Downs is to be credited, one must find, purely
as a matter of coincidence, that Downs, on behalf of Bryant, selected and hired
34 applicants out of a, total of 50, as millwrights, without knowledge of the
union membership or affiliation of any of the 50 applicants, and in so doing
selected for hire only those applicants who were members of Carpenters Local
No. 559, AFL.
The mathematical possibility that selection of the 34 applicants hired on
different dates between October 6 and December 19, 1949, bore no relationship
to their common interest in and membership in Local No. 559, but resulted from
the operation of chance, is exceedingly remote.28 While such possibility, however
remote, may not be ignored altogether, the mathematical improbability that the
union membership of the 34 successful applicants in Local No. 559 was disre-
garded as a relevant factor in their choice for employment is so great as to
cast the burden upon the Respondent to come forward with a plausible and con-
vincing explanation demonstrating that the action taken by it with respect to
each affected employee was based solely upon nondiscriminatory consideration.
This the Respondent has not done. It has chosen to rely upon its alleged
instructions to Downs to employ competent workmen without discrimination
against any applicant for a job because of union membership or affiliation
or the lack of a particular union membership or affiliation, whereas the rec-
ord clearly discloses by a preponderance of the credible evidence that Downs
confined his employment of millwrights exclusively to members of Local No. 559,
AFL, and thus made Vaughn's boast to Griffin, when he said : "Mr.,Grit ln, Mr.
Downs is a member of our organization and he will look after our interest,"
come true. Contention ( 3) as a Respondent's defense is without merit, and
is so found.
4. Conclusions
Upon the foregoing and the record as a whole it appears that the Respondent,
by its Superintendent of Construction Bryant, tacitly entered into a closed-
shop agreement covering carpenters, and carpenters-millwrights, electricians,
steamfitters, painters, iron workers, and laborers with Paducah Building and
Construction Council, AFL, providing that Respondent would employ only
AFL craftsmen on the KOW project ; that when Griffin, as IAM representa-
tive, insisted that the machine work should be assigned IAM members, rather
than to Carpenters-Millwrights, Respondent, after the Carpenters and the IAM
28 On the basis of pure chance, the mathematical possibility of hiring these 34 applicants
who were members of Local No 559. out of the total of 50 applicants , and no others, was
one chance in 5 trillion The situation is comparable to that of a blindfolded person
selecting at random 34 white marbles in succession from a bowl containing 50 marbles, 16
of which are black, and 34 of which are white. See J. V. Uspensky, Introduction to Mathe-
matical Probability (1st Ed.) McGraw-Hill Book Co., Inc p. 19; and see U. S. Trailer Mtg.
Co., 82 NLRB 112.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to reach an accord on division of machine work, announced that no,
millwrights and/or machinists would be hired through their respective unions„
and announced that Downs, hired as a millwright foreman, would do all hiring
of necessary millwrights and machinists.
It further appears that as to all crafts other than machine workers, the
closed-shop arrangements continued, and as to millwrights and machinists,.
Downs employed only carpenters -millwrights who were members of Local 559,
AFL, and thereby granted to the latter full benefits of closed-shop agreement
tacitly entered into between Respondent and the Council. All of which is
so found.
Upon the foregoing, the undersigned concludes and finds that the Respond-
ent's refusal to hire those persons listed in Appendix A because they were not
members of the Carpenters, and in order to discourage membership in, sym-
pathy for, and activity on behalf of the IAM, thereby, discriminated against
said applicants listed in Appendix A in regard to their hire and tenure of em-
ployment ; encouraged membership in the Carpenters ; discouraged member-
ship in the IAM ; and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act;
and thereby violated the Act within the meaning of Section 8 (a) (1) and (3)
thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, appearing
in connection with its operatibns described in Section I, above, had 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 the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take the affirmative actions set forth below, which the undersigned finds will
effectuate the policies of the Act.
Having found that the Respondent _ has discriminated in regard to the
hire and tenure of employment of the 16 persons listed in Appendix A, at-
tached hereto, it will be recommended that the Respondent make them whole
for any loss of pay they may have suffered as a result of the discrimination against
them by payment to each of them of a sum of money equal to that which he
would have earned as wages from the date or dates upon which the Respondent
discriminatorily refused to employ them, all as hereinabove found, to Febru-
ary 12, 1951, the date of the completion of the KOW project." Loss of pay shall
be computed on the basis of each separate calendar quarter or portion thereof
during the period from the Respondent's discriminatory action to the date
of February 12, 1951. The quarterly periods, herein called quarters, shall be-
gin 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 each would nor-
mally have earned for each such quarter or portion thereof, his net earnings SO
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 31
+ 29 Since the KOW project was completed on or about February 12, 1951, reinstatement
may not be , and is, not , recommended.
88 Crossett Lumber'Companj, 8 NI.RB 440 , 497-8.
81 F. W. Woolworth Company, 90 NLRB 289. -
JOHN L. CAMP 51
In accordance With the Woolworth decision, it will be recommended that the
Respondent, upon reasonable request, make available to the Board and its
agents all records pertinent to an analysis of the amount due as back pay.
The unfair labor practices found reveal on the part of the Respondent an
antipathy to the objectives of the Act as to justify an inference that the com-
mission of other unfair labor practices may be anticipated. The preventive
purposes of the Act may be frustrated unless the Respondent is required to
take some affirmative action to dispel the threat. It will be recommended,
therefore, that the Respondent cease and desist from in any manner interfer-
ing with, restraining, and coercing its employees in the exercise of the rights
guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists 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
Cecil Weitlauf, W. L. Choate, Anthony Daniel Kelly, James Edwin Smith,
William Earl Sloan, Ben W. McKinney, Raymond K. King, James Bradley
Smith, Z. C. Herrold, William R. Vines, Sam J. Sloan, Reginald Purcell, A. L.
Ham, John W. Dowell, Earl D. Terry, and Fred O. Rupche, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By such discrimination, by interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has. engaged in and is 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.]
JOHN L. CAMP. September 10, 1951
Decision and Order
On November 4, 1949, the General Counsel of the National Labor
Relations Board, herein called the Board, filed with the Board a peti-
tion for issuance of an order to show cause why the Respondent,
John L. Camp, an attorney at law, should not be excluded from fur-
ther practice before the Board because of an assertedly unprovoked,
premeditated, physical assault of an aggravated character committed
by Camp upon Edmond Donald Wilson, the attorney representing
the General Counsel, during the course of an unfair labor practice
proceeding before Trial Examiner Henry J. Kent in Ohio Oil Com-
pany, 92 NLRB 1597.
96 NLRB No. 7.