Consolidated Constructors & Builders, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1967

165 N.L.R.B. 656 (N.L.R.B. 1967)

656 DECISIONS OF NATIONAL
Consolidated Constructors & Builders, Inc.
and Fred L . Sprague and Owen L. Clark.
Cases 1-CA-5714-1 and 1-CA-5714-2.
June 20,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 5, 1967, Trial Examiner John G. Gregg
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision, and a supporting
brief. The Respondent filed a brief in answer to the
General Counsel's brief and exceptions. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was' committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, only to the extent consistent
with this Decision and Order.
The Trial Examiner found that the Respondent's
collective-bargaining agreement with Local 621 of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (hereinafter called Local 621),
was intended to cover millwrights, and that
employees Owen Clark and Fred Sprague were
lawfully discharged by the Respondent on
September 22, 1966, pursuant to the agreement's
lawful union-security provision. We do not agree.
Clark and Sprague were past members of Local
621. On June 27, 1966, they obtained clearance
cards from that Local for the purpose of becoming
charter members of Local 1219, a new millwright
local chartered by the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, on
June 15, 1966. Clark was hired by the Respondent on
August 2, 1966, as a millwright foreman, and
Sprague, on August 8, as a millwright. Both
employees worked on the Madawaska project, and
the record shows that neither employee performed
traditional carpentry work while in the Respondent's
employ. Other millwrights were employed on the
project, but only Clark and Sprague were members
' The General Counsel's motion to strike Respondent 's brief
submitted as an "answering" brief in accordance with Sec
102.46 (d) of the Board Rules and Regulations , Series 8, as
LABOR RELATIONS BOARD
of Local 1219. On September 21, 1966, Local 621's
shop steward, Allen, told the Respondent's
superintendent, Guy Sleeper, that there would be a
work stoppage if, in view of their current contract's
union-security provision, Clark and Sprague
continued on the job without becoming members of
Local 621. According to Sleeper's credited
testimony, he discharged both Clark and Sprague on
September 22, 1966, after they refused to comply
with a request that they join Local 621.
Although the issue herein was formed, in part, on
a theory that the Respondent was motivated in
discharging Clark and Sprague because of their
membership in Local 1219, and in order to avoid
bargaining with Local 1219, a theory on which, in
view of our determination herein, we need not pass,
it is also alleged by the General Counsel in support
of that theory, that the 1966 agreement was not
applicable to millwrights. It is evident, therefore,
that if in fact the terms of the agreement did not
apply to millwrights, their discharge under the
agreement's union-security clause would establish a
violation of the Act irrespective of any other
unlawful motivation of the Respondent.''
Sometime in July 1966, the Respondent and
Local 621 began negotiations for a new collective-
bargaining contract. The old contract was to
terminate in July but was extended to August 15 by
oral agreement of the parties. It is clear that the
contract in effect at the commencement of these
negotiations was entered into by Local 621 when its
jurisdiction included both carpenters and
millwrights. The old agreement specifically applied
to millwrights as evidenced by the fact that it
provided for a millwright rate which was 25 cents an
hour more than the journeyman-carpenter rate.
However, as mentioned supra, the United
Brotherhood chartered Local 1219 on June 15, 1966,
granting to that Local jurisdiction over all
millwrights in the State of Maine. The record clearly
shows that the parties were aware of this fact during
the negotiations. Agreement on a new contract was
reached on August 15, 1966, but was not reduced to
writing and signed until October 11, 1966.
It is the Respondent's contention that the new
agreement was intended to preserve for Local 621 its
jurisdiction over the work of erecting and
dismantling machinery, and therefore to bring within
its coverage all employees performing such work.
Whether it was Respondent's belief, at the time the
oral understanding was reached on terms of the new
contract, that it had specifically accomplished the
purpose of bringing millwrights within the
agreement's coverage is not clear from the record.
What is clear, according to the credited testimony of
Local 621's negotiator, Harold W. Sargent, is that
upon instructions from the United Brotherhood's
amended, is denied
2 Cf The Item Company, 113 NLRB 67,68
165 NLRB No. 79
CONSOLIDATED CONSTRUCTORS & BUILDERS, INC. 657
International representative, Harry Hogan, not to
bargain on behalf of the millwrights, he, Sargent, did
not negotiate with the Respondent for millwrights.
The contract resulting from these negotiations in
article I thereof recognizes Local 621 ". . as the
sole and exclusive representative of all employees in
the classifications of work covered by this
Agreement for collective-bargaining purposes with
respect to wages, hours, and other terms and
conditions of employment on any and all work
covered by this Agreement." Although the contract
in article IV, section 1(A) thereof, recites that the
trade autonomy of the "United Brotherhood of
Carpenters and Joiners" consists of, among other
things, ". . . erecting and dismantling of machinery,"
the contract does not list the trade classification of
millwrights as one of the classifications covered by
the contract. As indicated, unlike the earlier
contract, it provides no "millwright" wage rate, and
asserts no claim on behalf of Local621 to trade
autonomy over the "erecting and dismantling of
machinery." Indeed, the only section of the contract
which defines for Local 621 the "work covered by
this agreement" is found in section 1(B) of
article IV. That section , while listing in great detail
the work over which Local 621 does claim
jurisdiction, contains no mention of the work of
erecting or dismantling of machinery, and concludes
with the following express proviso:
Provided, however, that nothing herein shall be
intended or interpreted as a claim by the Union
of any of the trade autonomy or trade
jurisdiction of millwrights. Any divisions or
subdivisions not specified above, shall be
governed by the Trade Autonomy as outlined in
the constitution and laws of the United
Brotherhood of Carpenters and Joiners of
America.
In view of the foregoing, we are of the opinion,
contrary to the Trial Examiner, that the new contract
is not ambiguous as to coverage, and the scope of its
coverage may not be expanded by resort to parol
evidence. We find that the contract by its terms
excludes millwrights and that the requirements of
the union-security clause for membership in
Local 621 as a condition of employment is therefore
not applicable to millwrights.
Even if we entertained any doubt as to the
meaning of the contract's provisions , we would find
on the evidence before us that, whatever else the
parties intended, it was not their mutual intent to
include millwrights within its coverage. Certainly,
had both Local621 and the Respondent desired to
subject millwrights to the contract's coverage, it
would have presented no formidable obstacle for
them to have expressed such intent in clear
unambiguous language, as apparently they did when
no strictures from the parent organization existed
against carpenter locals asserting jurisdiction over
the work of millwrights. Since it is clear that Clark
and Sprague were members of Millwright
Local-1219, and it does not appear that their work
embraced anything but millwright work, it follows
that neither Clark nor Sprague was under a
contractual obligation to become members of
Local 621 as a condition of employment, and in
discharging them for their refusal to join Local 621
in accordance with the terms of the contract's union-
security provision, the Respondent violated Section
8(a)(1) and (3) of the Act, since it thereby encouraged
membership in Local 621 and discouraged
membership in Local 1219.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discharging employees
Clark and Sprague on September 22, 1966, we shall
order that the Respondent make these employees
whole for any loss of pay suffered by reason of the
discrimination against them. Since the record shows
that the Madawaska project was completed on
January 24, 1967, and that Clark' s and Sprague's
employment therefore would have ended on that
date for nondiscriminatory reasons, reinstatement
will not be ordered. Said loss of pay will be based
upon earnings which Clark and Sprague would
normally have earned from the date of the
discrimination against them , September 22, 1966, to
January 24, 1967, the date upon which their
employment would have otherwise terminated, less
net earnings of each during such period. Backpay
and interest thereon shall be computed in the
manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent, Consolidated Constructors &
Builders, Inc., is an employer engaged in commerce
or in an industry affecting commerce, within the
meaning of Section 2 (6) and (7) of the Act.
2. Local 621, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and Local 1219,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
3. Owen Clark , millwright foreman , and Fred
Sprague, millwright, are employees within the
meaning of Section 2(3) of the Act.
4. By the discharge of Clark and Sprague, upon
demand of Local 621, the Respondent engaged in
unfair labor practices violative of Section 8(a)(3) of
the Act.
5. By the discharge of Clark and Sprague, upon
demand of Local Union 621, the Respondent
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed
in Section 7 of the Act, and thereby violated Section
8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Consolidated Constructors & Builders, Inc.,
Portland, Maine, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Local 621, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, by discharging Owen Clark and Fred
Sprague, or any other millwright, or discriminating
against them in any other manner because they are
not or are unwilling to become members of
Local 621.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act,
except to the extent that such rights 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, as modified
by the Labor-Management and Disclosure Act of
1959.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act.
(a) Make Owen Clark and Fred Sprague whole for
any loss of pay they may have suffered by reason of
the discrimination against them, in the manner and
in accordance with the methods referred to in the
section above in this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business in Portland,
Maine, copies of the attached notice marked
"Appendix."3 Copies of said notice, to be furnished
by the Regional Director for Region 1, after being
duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
9 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order."
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, as
amended, we hereby notify our employees that:
WE WILL NOT encourage membership in
Local 621, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, by
discharging Owen Clark or Fred Sprague, or
any other millwright, or discriminate against
them in regard to their hire, tenure of
employment, or any term or condition of
employment because they are not, or are
unwilling to become members of said union.
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of their
rights guaranteed by Section 7 of the Act,
except to the extent that such rights 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, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL make Owen Clark and Fred
Sprague whole for any loss they may have
suffered by reason of the discrimination against
them.
CONSOLIDATED
CONSTRUCTORS &
BUILDERS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board' s Regional
Office, Cambridge and New Sudbury Streets,
Boston , Massachusetts 02203, Telephone 223-3300.
TRIAL EXAMINER'S DECISION
JOHN G. GREGG, Trial Examiner: This case was heard
before me at Portland, Maine, on February 20, 1%7, on the
CONSOLIDATED CONSTRUCTORS & BUILDERS, INC.
complaint of the General Counsel and the answer of
Consolidated Constructors & Builders, Inc., herein called
the Respondent . The complaint alleges violations by the
Respondent of Sections 8(a)(1) and (3) and 2(6) and (7) of
the Labor Management Relations Act, 1947, as amended,
61 Stat . 136, herein called the Act.
Subsequent to the close of the hearing under date of
March 20, 1967, the General Counsel moved to reopen the
record solely for the purpose of introducing a letter signed
by the attorney for Local 621 setting forth among other
things the position of the attorney relative to matters in
issue. Counsel for the Respondent objected to the
admission of this document on the grounds that the
General Counsel had every opportunity during the hearing
to call the attorney as a witness but chose not to do so. I
find no newly discovered evidence involved in this
motion and for the reasons advanced by the Respondent
hereby deny the motion to reopen.
Briefs were filed by the General Counsel and
Respondent and have been carefully considered.
Upon the entire record, and from my observation of the
witnesses as they testified , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation duly organized under
and existing by virtue of the laws of the State of Maine,
maintaining its principal office and place of business at
616 Congress Street , Portland, Maine, where it is engaged
in the construction business Annually, the Respondent
purchases raw materials valued in excess of $50,000 which
raw materials are shipped from points outside the State of
Maine directly to the Respondent within the State of
Maine. The Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 621 , United Brotherhood of Carpenters and
Joiners of America and Local 1219 , United Brotherhood
of Carpenters and Joiners of America , are each labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent on or about
September 22, 1966, discharged Fred Sprague and Owen
Clark because they joined or assisted Local 1219 and/or
because they were not members of Local 621 , thereby
discriminating in regard to the hire or tenure or terms or
conditions of employment of the aforesaid individuals in
violation of Section 8(a)(3) of the Act, and thereby
interfering with , restraining, and coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
The Respondent denies the commission of any unfair
labor practices , alleging that it discharged Sprague and
Clark at the request of the Union and in accordance with
the terms of the Respondent ' s collective -bargaining
agreement with the Union.
A. The Collective-Bargaining Agreement
Harold W . Sargent, business agent and president of
Local 621 , testified that Local 621 and the Respondent
659
were never without a contract , that in July 1966, the then
existing contract was extended by agreement of the parties
until August 15, 1966, and that on August 15, 1966, the
parties reached complete agreement , later reduced to
writing and now embodied in the current executed
contract . Sargent testified that immediately after reaching
agreement on August 15, 1966, the Company put the terms
of the agreement into effect. The record clearly indicates
that when the Respondent and Local 621 met in July 1966,
to negotiate a new contract , by agreement the contract
which was then in effect was extended until August 15,
1966. The record also indicates that in accordance with the
practice of the parties in prior negotiations , immediately
after agreement was reached at the bargaining table on
August 15, 1966, the Respondent placed into effect
retroactively to July 15, 1966, the provisions of the new
agreement . Also according to their prior practice, the
parties took about 4 weeks to draw up and execute the
written contract , which was executed in October 1966, and
effective by its terms on August 15, 1966.
The General Counsel contends that on September 22,
1966, the date of the discharge of Sprague and Clark, there
was no valid collective -bargaining agreement in effect
between Local 621 and the Respondent, citing Union Fish
Company, 156 NLRB 187. In that case the contract was
signed February 1, 1964, effective February 3, 1964, and
was the result of a settlement agreement following a period
of time within which the employer had refused to bargain
with the Union by refusing to execute the agreement which
had previously been orally and finally agreed on by the
parties. In the case at hand , there is no indication other
than that the parties were in full and final agreement from
August 15, 1966, until the date the contract was actually
executed , in fact the effective date of the agreement is
included in the executed document as August 15, 1966.
A collective-bargaining agreement may be validly
entered into even though the written instrument
evidencing the terms of said contract has not been
executed by the parties. If the parties agreed and intended
to be bound by the agreement prior to the formal signing of
a written document , they will be bound by the contract.
There is ample credible testimony of record herein
establishing the intention of both Local 621 and the
Respondent to place into effect and to be bound by the oral
agreement consummated on August 15, 1966 , leaving the
administrative formality of executing the written
agreement to a point later in time as had been their prior
practice . I find, therefore , that on September 22, 1966, at
the time of the discharges herein , there was in effect
between Local 621 and the Respondent a valid and
existing collective -bargaining agreement.
The General Counsel urges further that even though an
oral agreement was in effect on the date of discharge, such
agreement excludes millwrights, or is so ambiguous as to
exclude millwrights from the unit contained therein. The
record indicates the existence of prior collective-
bargaining agreements between the Respondent and
Local 621 pursuant to which over the years Local 621
furnished the Respondent with carpenters and
millwrights. It is also clear from ample credible testimony
of record that pursuant to this prior practice , carpenters
furnished by Local 621 who proved to have the necessary
skills would be used as millwrights and paid the higher
millwright scale provided for in the earlier agreements.
The agreement , in its executed form, provides in pertinent
part as follows:
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section IA. The trade autonomy of the United
Brotherhood of Carpenters and Joiners of America
consists of ... the erecting and dismantling of
machinery ....
On the other hand, the agreement also contains this
language:
Section 1B. ... nothing herein shall be intended or
interpreted as a claim by the Union of any of the trade
autonomy or trade jurisdiction of millwrights ....
Undisputed credible testimony of record indicates that
the erection and dismantling of machinery is work
performed by millwrights. According to the testimony of
Guy Sleeper, at the time of the discharge of Sprague and
Clark there were approximately 125 employees working on
the Madawaska project. Of these, all who were doing the
work of carpenters and millwrights were from Local 621,
with the exception of Sprague and Clark. He stated that
for 11 years while he was superintendent of the
Respondent, and a company representative on the job with
Local 621, Local 621 always represented those workers
who erected and dismantled machinery.
Sargent, business agent for Local 621, testified as
follows:
Q. I show you the trade autonomy clause in the
present agreement and ask you if that refreshed your
recollection?
A. That is correct.
Q. Does that refresh your recollection and that was
work claimed by Local 621?
A. Right.
Q. Was it also stated at the table-strike that. Do
you have any recollection about a half a day that was
spent on the trade autonomy clause?
A. There was considerable time spent on it, yes. I
wouldn't say exactly how long it was, but there was
some little time spent on it.
Q. When I say ... was it Local 621's contention at
the bargaining table that we are going to spell out just
what work we claim, if anybody goes on to a job.of
ours and performs that work, regardless of what you
call them, they are going to join our local. Do you
recall that?
A. That is correct.
Q. And did the company agree with that?
A. Yes.
Sargent testified that during the negotiations Local 621
took the position that the erection and dismantling of
machinery was to be their work and it was immaterial what
other union these men might belong to, that if they were to
perform this work they were going to belong to and pay
dues to Local 621. Sargent testified that the erection and
dismantling of machinery was within the scope of the
agreement . Sargent testified that he had been instructed
by the International by telegram which he received around
August 22, 1966, not to deal with millwrights and that he
passed these instructions on to Allen a week later, all of
which occurred subsequent to the agreement of
August 15,1966.
Murray Allen, Jr., the shop steward on the project for
Local 621, testified that his duties on the Madawaska
project included the enforcement of the labor agreement
between the Respondent and Local 621, that anyone on
the job doing work within the trade autonomy of Local 621
had to be a member of Local 621. There is undisputed
credible testimony of record indicating that at the time of
the discharges there were also 30 millwrights on the job
out of Local 621 working as millwrights.
While the agreement as finally executed would appear
to be ambiguous on the question, I am convinced and I
find from ample credible testimony of record that in the
oral agreement reached on August 15, 1966, later reduced
to writing in October 1966, the parties agreed and intended
that the work of erecting and dismantling machinery,
theretofore performed by carpenter-millwrights members
of Local 621, would continue to remain within the scope of
the agreement and would continue to be performed by
members of Local 621, and that this agreement was in
effect on September 22, 1966, the date of the discharges
herein.
B. The Discharge of Sprague and Owen
Owen Clark was hired by the Respondent on August 2,
1966, as a millwright-foreman; Fred Sprague was hired by
the Respondent on August 8, 1966, as a millwright. Both
were discharged by the Respondent on September 22,
1966.
While Clark was employed as a millwright-foreman on
the Madawaska project, the General Counsel contends he
was not a supervisor, hence an employee within the
meaning of the Act. Testimony of record establishes the
fact that the machine erection work on which Clark was
engaged was performed under the direction of a machine
erector supplied by the Company from which the machine
was procured, that the machine erector supervised the
erection , that Clark had not hired or fired employees on
the job, that if Clark were to make a recommendation on
hiring or firing it would be subject to independent
investigation by the Respondent's superintendent before
approval, and that foremen had been traditionally included
in the bargaining unit under the Respondent's contract
with Local 621. Under these circumstances, I find that
Clark was an employee within the meaning of the Act.
Sprague had been a carpenter, had become a member of
Local 621 in September 1953. For the past 6 years or so he
had been a millwright. When in June 1966, a new and
separate Millwright Local 1219 was chartered by the
United Brotherhood of Carpenters and Joiners of America,
Sprague cleared out of Local 621 on June 27, 1966, and
became a charter member of Local 1219. Clark was a
millwright for 7 years, was hired as a millwright foreman
on the Madawaska project, was requested to recruit more
millwrights , and recruited Sprague for the job. Clark had
been a member of Local 621 for about 6 years, and, like
Sprague, had cleared out of Local 621 to become a
member of Local 1219. Sargent, business agent for
Local 621, testified that both had been members of
Local 621; that when Local 1219 was established, they
cleared out of Local 621 and joined millwrights
Local 1219. At the time of their employment on the
Madawaska project, both Sprague and Clark were
members of Local 1219.
There was testimony by Sargent, business agent for
Local 621, that occasions arise when members of other
locals, not members of Local 621 but from another
jurisdiction or local, might be employed on a job within the
area of Local 621. According to Sargent, when Local 621
did not have enough men to fill any order from any
company, Local621 called on another local to assist
Local 621 in filling the requirement. The usual procedure
when these men came on a job, according to Sargent, was
to report to the steward and to produce a work permit from
their business agent who in the meantime would have
contacted Sargent and received permission to send the
men to work. Sargent testified that he was the only
CONSOLIDATED CONSTRUCTORS & BUILDERS, INC.
individual authorized to give permission for the issuance of
work permits and that neither Sprague nor Clark had
applied for such permits.
According to the testimony of Guy Sleeper,
superintendent of the Madawaska job for the Respondent,
on September 21, 1966, he was approached by Allen, the
steward for Local 621, who told him that there would be a
work stoppage if Sleeper did not have Sprague and Clark
either join Local 621 or discharge them.
Sleeper then telephoned the Respondent's Portland
office for advice, was later that day advised by Sullivan,
vice president of the Respondent, that Allen was correct
and that Sleeper had no alternative.I
There are considerable differences in the versions of
what actually was said prior to and at the time of the
discharges on September 22. Sleeper testified essentially
that he made it clear before discharging Sprague and
Clark, that if they did not join Local 621, they could not
continue to work on the project, that they had no
alternative.
Sprague's version was that on September 21, 1966, he
was asked by the assistant superintendent, Gauvin,
whether he belonged to Local 1219 and he responded that
yes he was a charter member. In response to a further
query, Sprague indicated that Clark also belonged to
Local 1219. Sprague testified that at no time did he have
any conversation with any management representative or
supervisor about joining Local 621, that no one requested
that he join Local 621, or that he obtain a work permit
through Local 621. Sprague testified that the reason
advanced by Sleeper for his discharge on September 22
was that work was slacking off, although as far as Sprague
knew the work was not slacking off, and the Respondent,
around the time of the discharge and since, had hired new
employees.
Clark's testimony was essentially the same, that Allen
had never had a conversation with him about joining
Local 621, that he had never been informed while on the
job that he had to become a member of Local 621, nor
requested to become a member of Local 621. Clark
testified that during the time of his employment on the
project he did discuss Local 1219 with the men while on
the job, that the men had inquired as to his membership in
Local 1219, that he was not aware of any discord or
disharmony among the members of the unit because of the
fact that he and Sprague were on the job working while not
members of Local 621. Clark testified that he had had
three conversations with Allen about his being a member
of Local 1219; one the first week of his employment, one
the third week, and the last the fifth or sixth week. Clark
could not recall the substance of these conversations. He
did recall, however, that they were not about his failure to
join Local 621 indicating that as far as he was concerned
he would not discuss Local 621.
According to the testimony of Allen, shop steward for
Local 621 on the project, the men had become concerned
and alarmed about the situation of having Sprague and
Clark working on the job without being members of
Local 621 and on several occasions had come to Allen and
questioned him about Sprague and Clark, wanting to know
why they were working on the job. As a result of this,
according to Allen, Allen talked with Clark and Sprague
indicating that he said to Clark among other things that
"621 covers this job and it will 'til it is finished. It is signed
lawfully for 621. 621 covers this job and you men are
' See Montgomery Ward and Co., Inc., 162 NLRB 369.
661
scabbing." Allen stated that he talked to both Clark and
Sprague about the necessity for belonging to Local 621 in
order to continue on the job, that he did this within several
days of their hiring, but had had no reaction from Clark
and Sprague, they just "shrugged their shoulders." Allen
testified further that before seeking the discharge of
Sprague and Clark he had discussed the situation with
Sargent, business agent for Local 621, that Sargent had
indicated that as the shop steward, Allen was "in the
right." According to Allen, after contacting Sargent
several times concerning this matter, he finally went to
Superintendent Sleeper and demanded that Sleeper
discharge Sprague and Clark unless they joined Local 621,
or there would be a work stoppage.
There is ample credible testimony of record establishing
the fact that Sprague and Clark were told and advised and
were aware that the work they were performing was
claimed by Local 621 and that if they wanted to continue
to perform that work, they would have to join Local 621.
Considerable testimony to this effect was offered by Allen,
shop steward for Local 621. I credit his testimony. Similar
testimony was offered by Sleeper, superintendent for the
Respondent. I credit his testimony. I do not credit the
testimony of Sprague and Clark to the contrary. While
admitting that there had been many, many conversations
concerning Local 1219 on the job and while testifying to
conversations with both Allen and Sleeper, Sprague and
Clark meticulously drew a strained line by insisting in
essence that in these latter conversations Local 1219 was
mentioned, but there was no discussion relative of
Local 621. I simply do not credit this testimony, and I
found the demeanor of the witnesses in testifying in this
regard to be strained and lacking in conviction.
I am convinced and I find from the record as a whole
that the Respondent hired Sprague and Clark in August,
did not concern itself with the matter of their union
affiliation or activity, and acted to discharge them only
when the shop steward demanded that the Respondent
discharge them unless they joined Local 621 as required
by the agreement, or there would be a work stoppage on
the project. I find that the Respondent, through
Superintendent Sleeper, did in fact advise Sprague and
Clark of the requirement that they join Local 621 and
requested that they join Local 621 or be discharged. In so
finding, I find further that on this record it has not been
established by a preponderance of evidence that the
Respondent discharged Sprague and Clark for the reason
that they joined or assisted Local 1219.
Upon the basis of the record as a whole and the findings
herein, I make the following:
CONCLUSIONS OF LAW
1. Consolidated Constructors & Builders, Inc., the
Respondent herein, is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. Local 621, United Brotherhood of Carpenters and
Joiners of America and Local 1219, United Brotherhood of
Carpenters and Joiners of America, are labor
organizations within the meaning of Section 2(5) of the
Act.
3. Fred L. Sprague, millwright, and Owen L. Clark,
millwright-foreman, are employees within the meaning of
Section 2(3) of the Act.
299-352 0-70-43
662 DECISIONS OF NATIONAL
4. On September 22, 1966 , there was in existence
between Consolidated Constructors & Builders, Inc. and
Local621 a collective -bargaining agreement including a
lawful union-shop provision.
5. It was not established herein by a fair preponderance
of substantial credible evidence that the Respondent
discharged Sprague and Clark because they joined or
assisted Local 1219.
6. By the discharge of Sprague and Clark, upon
demand of Local 621, and pursuant to a valid existing
collective -bargaining agreement including a union-security
provision as provided for in Section 8(f) of the Act, the
Respondent did not discriminate in regard to hire or
tenure of employment or any term or condition of
employment for the purpose of encouraging or
discouraging membership in any labor organization and
the Respondent did not thereby engage in unfair labor
practices violative of Section 8(a)(3) of the Act.
LABOR RELATIONS BOARD
7. By the discharge of Sprague and Clark upon demand
of Local 621 and pursuant to the provisions of a valid
existing collective-bargaining agreement , the Respondent
did not interfere with, restrain , or coerce its employees in
the exercise of their rights guaranteed in Section 7 of the
Act and did not thereby violate Section 8(a)(1) of the Act.
Accordingly , it is recommended that the complaint
herein be, and it is, hereby dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the complaint herein be, and it is,
hereby dismissed.