Foundation Co.Download PDFNational Labor Relations Board - Board DecisionsJun 17, 1958120 N.L.R.B. 1453 (N.L.R.B. 1958) Copy Citation FOUNDATION COMPANY 1453 Foundation Company and Charles L. Bridgeman Local No. 160, International Hod Carriers , Building and Com- mon Laborers Union of America , AFL-CIO and Charles L. Bridgeman . Cases Nos. 14-CA-1559 and 14-CB-415. June 17, 1958 DECISION AND ORDER On August 30, 1957, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allega- tions. Thereafter, the General Counsel, the Respondent Company, and the Respondent Union filed exceptions to the Intermediate Re- port and supporting briefs. 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-mem- ber panel [Chairman Leedom and Members Bean and Fanning]. 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 In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,-conclusions; and-reconi- mendations of the Trial Examiner, with the following modifications and additions : 1. The Trial Examiner found that the union-shop clause in the contract between the Respondents covering the Company's laborers was unlawful because executed at a time when there was not a rep- resentative complement of employees in the contract unit. This find- ing implies that the contract was signed on July 13, 1956, the day after the first four laborers were hired by the Company. However, at another point, in discussing'the question of the Union's compliance with Section 9 (f), (g), and (h) of the Act, the Trial Examiner ex- pressly found that the contract was signed on July 11, 1956, before any laborers had been hired. We adopt only the latter finding, for the following reasons : Pretrial affidavits, which were admitted in evidence at the hearing and there acknowledged by the affiants to be correct, show that the contract was executed on July 11, 1956. Al- though the affiants subsequently testified, contrary to the affidavits, that the contract was signed:'on July 13, we deem such self-serving testimony to be entitled to less weight than the statements, against 120 NLRB No. 191. 1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interest made in the affidavits immediately following the event,' and adopted at the hearing. We find,' therefore, that : The contract was signed on July 11, 1956; before any laborers had been employed by the Respondent Company; the union-shop clause contained therein did not meet the requirements of Section 8 (a) (3) of the statute, as the Union necessarily did not represent a majority of the em- ployees in the appropriate unit when the contract was executed; and the Respondent Company and the Union, by executing and main- taining the unlawful contract, violated Section 8 (a) (1) and (3) and 8 (b) (1) (A) and (2) of the Act, respectively. We therefore find it unnecessary to consider whether, assuming that the contract was signed on July 13, 1956, when there were only four employees in the contract unit, the union-shop clause was unlawful because the em- ployee complement was not representative at that time. 2. The General Counsel excepts to the Trial Examiner-' s failure to find that the contract of July 11 contained an unlawful closed-shop clause . The contract reads in part : In the event the classifications of work specified herein under the type of work covered by this Agreement should not fall within the meaning of the Labor Management Relations Act of 1947, then this agreement shall automatically become a closed shop Agree- ment or should the Act itself be abolished by the United States. Government, then this Agreement shall become a closed shop Agreement automatically. We agree with the Trial Examiner that the inclusion of this clause in the contract did not violate Section 8 (a) (3) or (1) of the Act. How- ever, in so doing we rely solely (1) on the fact that there is nowhere in the contract any requirement, in liaec verba, that the Employer shall hire only union members, and (2) on our construction of the language quoted above as meaning, in any event, that the "closed shop" shall not be effective unless and until the category of employees involved is re- moved from the coverage of the Act either by administrative or legisla- tive action, thereby deferring the operation of any "closed shop" provi- sion in the contract until the happening of such a contingency.' 3. As we have found above that the union-shop clause in the contract is unlawful for another reason , we, like the Trial Examiner, deem it unnecessary to determine whether it is also unlawful because the Union was not in compliance with the requirements of Section 9 (f), (g), and (h) of the Act when the contract was executed. 4. For the reasons given by the Trial Examiner, we find that the General Counsel has not established by the preponderance of the evi- dence that the Respondent Company violated Section 8 (a) (3) of the 1 Eba8co Services Incorporated, 107 NLRB 617, 620; County Eleetr{o Co ., Inc., et at., 116 NLRB 1080, 1083. 2 Wyckoff Steel Company, 86 NLRB 1318, 1319. FOUNDATION COMPANY 1455 Act by refusing to hire Bridgeman, or that such refusal was caused by the Union in violation of Section 8 (b) (2). 5. The Trial Examiner found that the Respondent Union, in viola- tion of Section 8 (b) (2) of the Act, has maintained and enforced, and continues to maintain and enforce, an agreement or mutual under- standing with the Respondent Company, requiring the Company to hire only those laborers who have been referred or cleared for employ- ment by the Respondent Union. We do not agree. While the record shows that the Respondent Company recruited all its laborers through the Union, the preponderance of the evidence does not establish that this was based on any mutual understanding or arrangement with the Union. So far as appears from the record, the Company's hiring pol- icy was unilaterally instituted by it, based solely on considerations of its own convenience., THE REMEDY Although the complaint did not allege, and the Trial Examiner did not find, any violation of Section 8 (a) (2) of the Act, the Trial Examiner recommended that the Respondent 'Company cease and desist from recognizing the Respondent Union as the representative of its employees until certified by the Board, and from giving any ef- fect to its contract with the Union pending such certification. Such a remedy is ordinarily granted by the Board only in cases where the Board finds 'a violation of Section 8 (a) (2) of the Act. As no such violation was either litigated or found here, we will not adopt the provisions of the recommended Order referred to above. However,, as we have found that the union-shop clause in Respondents' contract was unlawful we shall require the Respondents to cease and desist from executing and maintaining, or enforcing, any ' agreement requiring membership in the Union as a condition of employment, except as authorized by Section, 8 (a') (3)• of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent,. Foundation' Company, and its respective officers,. agents, successors, and assigns, shall : . 1. Cease and desist from : (a) Entering 'into,. maintaining, performing, ' or renewing any agreement, understanding, or practice with Local No. 160, Interna- tional Hod Carriers, Building and, Common Laborers Union of America, AFL-CIO, or with any other labor organization - which requires membership in such organization as a condition of employ- ment, except as authorized'by Section 8 (a) (3) of the Act. 1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of 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 organiza- tion as a condition of employment, as authorized by Section 8 (a) ^(3) of the Act. 2. Take the following affirmative action, which the Board finds ivill effectuate the policies of the Act: (a) Post at its operations in Grand Tower, Illinois, copies of the notice attached hereto marked "Appendix A." 3 Copies of such notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by an authorized representative of the Respondent Company, be posted immediately upon receipt thereof, and be maintained by it for a period of sixty (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 Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. The Respondent Union, Local No. 160, International Hod Car- riers, Building and Common Laborers Union of America, AFL-CIO, its officers, representatives, and agents, shall : 1. Cease and desist from : (a) Entering into, maintaining, performing, or renewing any agreement, understanding, or practice with Foundation Company, which requires membership in the Respondent Union as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. (b) In any like or related manner restraining or coercing the em- ployees of Foundation Company in the exercise of the rights guaran- teed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza-. tion as a condition of employment, as authorized by 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) Post at its business offices at Grand Tower, Illinois, and vi- cinity, copies of the notice attached hereto marked "Appendix B."' Copies of such notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by an authorized representative of Respondent Union, be posted immediately upon re- ceipt thereof and be maintained by it for a period of sixty (60) days a 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 "Pursuant to,a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." * See footnote 3, supra. FOUNDATION COMPANY 1457 thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail signed copies of the notice marked "Appendix B" to the Regional Director for the Fourteenth Region for posting by the Foundation Company, if it so agrees, at the places where it is required to post copies of the notice marked "Appendix A." (c) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, of the steps it has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaints herein, insofar as they allege that the Respondents have violated the Act otherwise than as found above, be, and they hereby are, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify Our employees that : WE WILL NOT enter into, maintain, perform, or renew any agree- ment which requires employees to join, or maintain membership in, Local No. 160, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, or any other labor organization, unless such agreement conforms with the re- quirements of Section 8 (a) (3) of the National-Labor Relations Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the National Labor Relations Act. FOUNDATION COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 483142-59-vol. 120-93 1458 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 160, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA,. AFL-CIO, AND TO EMPLOYEES OF FOUNDATION COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT enter into, maintain, perform, or renew any agree= ment which requires employees to join, or maintain their member- ship in, Local No. 160, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, unless such agreement conforms with the requirements of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in 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 in Section 8 (a) (3) of the Act. LOCAL No. 160, INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS UNION OF AMERICA , AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE It having been charged by Charles L. Bridgeman , an individual , on October 3, 1956 , that Local No. 160, International Hod Carriers , Building and Common Laborers Union of America, AFL-CIO, herein called the Respondent Union, and Foundation Company, herein called the Respondent Company, have engaged in and are now engaging in certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act, the General Counsel of the National Labor Relations Board, herein called the Board , by the Regional Director for the Fourteenth Region, docketed the charge against the Respondent Union as 14-CB-415 and the charge against the Respondent Company as 14-CA-1559 and duly served them on the proper parties . Thereafter under date of April 23, 1957 , the said Regional Di- rector issued complaints under the above docket numbers, and on the same day issued an order consolidating the two cases for purposes of hearing and caused due service to be made of the complaints , a notice of hearing, and the order consolidat- ing cases. The complaint in Case No . 14-CA-1559 alleged that the Respondent Company had engaged in unfair labor practices within the meaning of Section 8 (a) (1} and (3 ) of the Act. FOUNDATION COMPANY 1459 The complaint in Case No. 14-CB-415 alleged that-,the Respondent Union had engaged in conduct violative of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. With respect to the unfair labor practices, the complaint in Case No. 14-CB-415 alleged in substance that: On July 11, 1956, the Respondent Union and the Respondent Company executed a written contract for the purpose of governing conditions of employment of employees working in the job classification of laborers at a certain construction project; at the time of the execution of this contract, the Respondent Company did not have in its employ any employees-in the job classification covered by the terms of the aforementioned contract; the collective-bargaining agreement, referred to, above, contained a union-security clause; and since July 11, 1956, and at all times material hereto the Respondent Union has continued in effect the said written contract with the Respondent Company and has maintained and enforced and con- tinues to maintain and enforce the union-security clause therein. The complaint further alleges: On or about the 11th day of July-1955, the Respondent complied with the provisions of Sections 9 (f), 9 (g) and 9 (h) of the Act. Thereafter, on or about the 31st day of December, 1955, approximately 190 days prior- to the execution of the collective bargaining agreement referred to in Paragraph V above, the Respondent permitted its compliance with Section 9 (f) and 9 (g) of the Act to lapse and on or about the 1st day of June, 1956, the Respondent permitted its compliance with Section 9 (h) of the Act to lapse and remained out of compliance until July 31, 1956, approximately 50 days after the col- lective bargaining agreement referred ... was executed. On or about the 31st day of December, 1956, the Respondent'permitted its compliance with 9 (f) and 9 (g) of the Act to lapse and at all times thereafter has remained out of compliance. * * * * * * s The pattern of compliance and non-compliance with the filing requirements ,of 9 (f), 9 (g) and 9 (h) of the Act on the part of Respondent preceding and subsequent to the execution of the contract, as set forth above, renders the union security clause, set forth and described above, violative of Section 8 (b) (2) in that it requires and did require as a condition of employment, membership in a labor organization which failed to comply with Section 9 (f), 9 (g) and 9 (h) of the Act as provided in Section 8 (a) (3) of the Act. The complaint further alleges in substance that by reason of its illegal agreement with the Respondent Company the Respondent Union on or about July 17, 1956, "caused or attempted to cause Foundation Company to discriminate against Charles L. Bridgeman in violation of Section 8 (a) (3) of the Act." The complaint also alleges that on September 26, 1956, the Respondent Union expelled Charles Bridgeman from membership, depriving him of opportunities for employment, thus violating Section 8 (b) (1) (A) of the Act. With respect to Case No. 14-CA-1559, the complaint alleges that the Respondent Company entered into an illegal contract with the Respondent Union, as above set out, in violation of the Act and further in violation of Section 8 (a) (1) and (3) of the Act: On or about July 17, 1956, Respondent denied employment to Charles L. Bridgeman and refused to consider him for employment because he had not been cleared for employment or referred to Respondent by the Union. The complaint in Case No. 14-CB-415 further alleges that: By executing the union security clause referred to . . . above in ambiguous language so that the employees of the Company are unable to know whether they are free from closed shop conditions, and by enforcing it . . . Respondent [Union] violated Section 8 (b) (2) of the Act. The complaint in Case No. 14-CA-1559 recites the same language and alleges that by reason thereof: Respondent [Company] has discriminated against, interfered with, coerced and restrained, and is discriminating against, interfering with, restraining and coercing its employees in violation of Section 8 (a) (3) of the Act. Both Respondents filed separate answers denying that they had engaged in the unfair labor practices alleged. 1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice , a hearing on the consolidated complaints was held at Murphysboro, Illinois, May 27-29, 1957, before Louis Plost, the duly designated Trial Examiner. All the parties were represented by counsel, who are here referred to in the names of their principals. All parties participated and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally and to file briefs, proposed findings of fact and/or conclusions of law with the Trial Examiner. The parties waived oral argument. A date was set for the filing of briefs and conclusions and/or proposed findings. At the close of the General Counsel's case-in-chief, and again at the close of the hearing, the Trial Examiner denied motions by the Respondents to dismiss the complaint. The Trial Examiner granted a motion by the General Counsel to conform the pleadings to the proof with respect to spellings , names, places, and like minor variances. A brief has been received from the General Counsel. Upon the entire record, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Foundation Company is and at all times material hereto has been a corporation duly organized under and existing by virtue of the laws of the State of New York, with its principal office at 57 Williams Street, New York, New York. Since on or about July 1956, the Company has been engaged in the construction of an addition to the Central Illinois Public Service Companys powerplant located at Grand Tower, Illinois, the project involved in this proceeding. During the past 12-month period the Company in the course and conduct of its business performed services valued in excess of $50 ,000 in the State of Illinois. II. THE ORGANIZATION INVOLVED It was stipulated that Local No . 160, 'International Hod Carriers , Building and Common Laborers Union of America , AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The agreement between the Respondents, Union and Company Carsten Andersen, the Respondent Company's superintendent of construction, testified that: Sometime in May 1956 the Respondent Company undertook certain construction work for the Illinois Public Service Company at Grand Tower, Illinois; he arrived to superintend the work July 9, 1956; no employees for the job were hired before his arrival; various contractors, not affiliated with the Respondent Company, were already engaged on the project which was within a fenced enclosure, access to employees of all contractors being through a single guarded gate; on July 11 he asked the superintendent of Bates and Rogers, another contractor doing work on the project, where he could get laborers and was told to get in touch with Tunney Ellet, the job steward of the Respondent Union, who was at the time an employee of Bates and Rogers; and thereafter: . as I was walking off the job, Mr. Ellet, who I found out about later, he came over to me and asked if I wanted laborers. And I said, yes, I do. I want four tomorrow. He said, I'll get them for you. Andersen further testified that: The following day, July 12, because of a dispute between the Iron Workers Union and the men he had employed as to who was entitled to certain of Andersen's work, which caused a stoppage, Lloyd Watson, the business agent of the Respondent Union, came to the job on July 13 and conferred with the representatives of other unions, but before this meeting Watson at about 8 a. m. handed Andersen a labor agreement covering laborers to be employed by the Respondent Company; Andersen read the document and signed it, all within 10 minutes of the time he first saw Watson; actually he signed two dated copies of this agreement after noting that the document was dated July 12, the preceding day. He testified: I called Mr. Watson's attention to the fact that he dated it as the 12th, and he said, oh, it won't make any difference. FOUNDATION COMPANY 1461 According to Andersen, at the time he signed the agreement the Respondent Com- pany already had four laborers employed (on July 12) who would come under its terms. Andersen testified further that thereafter all laborers employed by the Respondent Company for the Grand Tower job were hired through the Union in the following manner: Sometimes I would get in touch with my labor foreman and ask him to get more laborers on the job. He would in turn tell me that he would contact the job steward, that is, Bates and Rogers' job steward, because he said that was the proper procedure and he did. The next day the men would be at the gate and they would come-we sign them up and they go to work. Q. You say sometimes. Now, how did you hire them other - times?- A. There were times when I would call Mr. Watson direct myself at night and ask for laborers. Q. And then he would send them out whenever you needed them and you would hire the men that were sent out, is that right?-A. In the morning these men would be at the gate, we would take the men, select the men out of the bunch that was there, sign them up and they went to work. TRIAL EXAMINER: Is it your testimony that all laborers that you hired were hired through a job steward of the union involved in this proceeding or through Mr. Watson, the business agent involved in this proceeding? The WITNESS: Yes, sir. As found herein the contract contains a "union shop" provision. Andersen testified that at the time of the hearing the Respondent employed 40 laborers on the Grand Tower project. Lloyd Watson, business agent for the. Respondent Union, testified that "on the twelfth [July] in the evening" Ellet telephoned him regarding the dispute with the Iron Workers, herein referred to; he then filled out two copies of a form contract and took them to the Grand Tower job the next morning where he first met Andersen and: I had asked him to sign the contract and he read it and signed them both. Watson testified that sometime before the Respondent Company began operations at Grand Tower he had instructed Ellet that if and when the Respondent Company started operations Ellet was to furnish it with those union members who had been laid off by other contractors on the job. Watson further testified: Q. Did you refer any men to the Foundation Company?-A. Only the ones that were working there, not only Bates and Rogers, but there were some more contractors in there. The record is clear that the Respondents, Union and Company, entered into a collective-bargaining contract freezing employees and prospective employees by means of a "union shop" agreement into a union which they did not themselves choose as their representative. The four men the Respondent Company had on its roll at the time did not constitute or even represent its full complement of employees. By agreeing to and maintaining the union-security contract, so casually tendered and signed, at a time when the number of employees at work was not representative of the anticipated work force, the Respondent Company unlawfully assisted the Respondent Union and the Union attempted to cause the Company to discriminate against employees.' An employer cannot by dealing with a union constitute it the legal representative of employees, present or prospective, unless the Union has been lawfully chosen to represent them 2 Upon the entire record the Trial Examiner finds that by entering into and main- taining the unlawful contract as herein found; the Respondents, Union and Company, have engaged in conduct violative of the Act, more particularly Section 8 (b) (2) and 8 (b) (1) (A) and 8 (a) (1) and (3) thereof. `_ B. The alleged discrimination against Charles L. Bridgeman Charles L. Bridgeman testified that he is now a member of the Respondent Union; has been a member "since 1949," -has -always obtained employment as a laborer t The Englander Company, Inc., 118 NLRB 707. Dtckey v. N . L. R. B., 217 F. 2d 652 (C. A. 6). 1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through the Union's business agent, and has never obtained a job by applying directly to an employer at the job site. Bridgeman testified that on July 3, 1956 (6 days before Andersen arrived to start the Respondent Company's work at Grand Tower and 9 days before the Respondent Company hired any laborers), he called on Union Business Agent Watson regarding a job with the Respondent Company. Bridgeman testified: I called him out to the car and asked him what he was going to do, if he was going to refer all these men that was working for Bates and Rogers that was already working over to the Foundation Company or was he going to hire new ones that wasn't working. He said he was going to refer these fellows at Bates and Rogers over to Foundation. I said, Cucklebur, you know that's not right. He said, do you want to go to work? And I said, yes. And he said, you can go over to the hard road job in Carbondale, and I said, I wasn't going over there, that I was going to work for Foundation. Then he got mad and wanted me to get out of the car and whip me, and I said, I'd be foolish to get out in your yard. But I said, if you want to go out of, the yard and go up the road I'll take you. Q. Was there anything said by Mr. Watson as to whether you would work on the job? - A. He said that he couldn't put me to work and that they voted that all those men, Bates and Rogers men, would go over to Foundation and had it written up in the minutes, and he said he can't change it. [Emphasis supplied.] Bridgeman testified further that "on the 12th or 13th of July" he presented himself at the Grand Tower project and asked for Andersen, and that: I had the watchman call him out to the gate. He came out and I introduced myself and told him that I worked for Foundation there before and that I'd like to have a job with him again. Furthermore, I said, I was foreman for them for quite a while when they was there before. [Emphasis supplied.] After making the above-related statement to Andersen, according to Bridgeman: I never said anymore that r recall. And he said, well, we are just getting started, and he said, we haven't. got anything done yet, we don't have tools yet, and I'll probably see you. TRIAL EXAMINER: He said that "III probably see you"? The WrrNESS: That wasn't the exact words but that was the meaning of it. TRIAL EXAMINER: Do you know what he said? The WrrNESS: I don't recall exactly. TRIAL EXAMINER: Did he tell you at that time that he was going to give you a job? The WITNESS: No. On cross-examination with respect to the above-related incident Bridgeman testified: Q. (By Mr. Griesedieck.) For what kind of a job did you ask him?-A. I told him that I would like to have a job, I didn't make no specification of any kind. Q. You mean to say that you did not refer to your old job as labor foreman in your conversation with Mr. Andersen?-A. No, sir. Q. You are sure of that?-A. Yes, sir. Q. You simply said you wanted a job?-A. That is right. [Emphasis supplied.] Bridgeman admitted that during the above conversation he did not leave his name, address, or telephone number with Andersen; however, according to Bridgeman: I told him that Mr. Ellet, the job steward in there, being that we had a little defuglty [sic] over the election, I guess that's what caused it, I said that we had an election in Grand Tower for alderman and I run against him and that he has not been the same since. Q. Did Mr. Andersen make any comment to you about that?-A. No. According to Bridgeman, that night he talked to Business Agent Watson by tele- phone "and told him I felt Mr. Andersen was going to give me a job. And I asked him if he was going to interfere, and he said, no, if he gives you a -job I won't interfere." , , , ,FOUNDATION COMPANY - 1463 Bridgeman testified that on the night of July 16 he talked to Francis Wells, the Respondent Company's office manager and that: He told me that Mr. Andersen wanted me to come up the next day that he wanted to see me, that he thought he would put me to work. However, in clarification he testified: TRIAL EXAMINER: Pardon me. Did you testify that Mr. Wells told you that Mr. Andersen told him to tell you to report for the job? The WITNESS: Told me to come to the job the following morning. TRIAL EXAMINER: For a job, told you to come for a job or just come to the job site? The WITNESS: He wanted me to come to the job the next morning,,that he thought he could use me, he didn't say I had the job. TRIAL EXAMINER: He didn't say you had the job? The WITNESS: That is right. TRIAL EXAMINER: Did he tell you that Andersen could use you or was it that Wells thought he could use you? The WITNESS: Wells. Bridgeman, however, at a later point testified that he "figured it was Andersen" who sent word that Andersen could use him. The next morning Bridgeman called at the gate and asked for Andersen who did not come out, but sent Wells to the gate who told Bridgeman to meet Andersen at a restaurant in Grand Tower at noon. At the restaurant Bridgeman met and talked with Andersen. Bridgeman testified: I approached the subject to him about this work up there. He said, I under- stand that you had some trouble with the union. And I said, not any more than I told you. And he said, I'd rather look into it a little further. Q. Was anything else said at that time that you recall?-A. Not that I recall. Bridgeman further testified that "maybe around the 28th" (of July) he again spoke to Andersen, who was accompanied by Clyde Hill, the Respondent Company's assist- ant superintendent, at the gate. Bridgeman first fixed the time as July 28, then changed his testimony to make the date "some time in September or'near the first of October," then changed it again to-July 23 and finally decided on October. The changes in testimony were all made on his direct examination by the General Counsel as follows: Q. (By Mr. Slaight.) Which date was it that you talked to them, to the best of your recollection? Just think which date it was? A. It was near the first of October. TRIAL EXAMINER: What happened to this July conversation with Mr. Hill and Mr. Andersen? Didn't you just testify- The WITNESS: (Interrupting.) I think I was mistaken about September. TRIAL EXAMINER: Do you want to make it now the last of September? The WITNESS: I'm pretty sure it was October-no, it was not October. TRIAL EXAMINER: When was it? The WITNESS: I'll say it was around the 23rd of July. TRIAL EXAMINER: And it isn't in October or September? The WITNESS: Its been in October. TRIAL EXAMINER: It is now in October, are you sure? The WITNESS: Yes. TRIAL EXAMINER: What makes you sure it was in October? The WITNESS: It was quite a while after Mr. Hill came down there, after September, or after July, it was quite a while after Mr. Hill came down on the job. According to Bridgeman on the date so fixed: I asked Mr. Andersen, I told him that I would like to have a definite answer as to going to work because I thought I had another place for a job. And he said that if I had some place else to go I better take it. I asked Mr. Hill, I said, what has Tunney told you that has soured you against me and I'd like to know what it is. He said Mr. Ellet had not told him anything. . . . Superintendent Andersen testified with respect to Bridgeman's application for em- ployment-with the Respondent Company that he first met Bridgeman at the entrance gate on July 12 and that: 1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Bridgeman, he introduced himself and said that he had been working for the company before as a labor foreman and that he-would like to have his old job back. According to Andersen he told Bridgeman that he needed no foreman, had only four laborers "which was sufficient for some time to come." According to Andersen, on July 16 Bridgeman came into the Respondent Com- pany's office, "how he got through the gate I don't know," and "asked me when I would be ready for him"; on August 1 he again talked to Bridgeman at the gate and told him that "I wouldn't encourage him in any way," this being in response to Bridgeman's statement that he had a job offered him elsewhere but preferred a job with the Respondent Company; before the latter incident, during "the week of July 16," Bridgeman asked for Andersen at the gate, but being busy Andersen sent word to Bridgeman to meet him at noon at a restaurant; Bridgeman came to the restaurant where "he again asked me when I would be ready for him",and: My conversation was simply that I had four laborers on the job and I did not need any more for some time to come. On the entire record considered as a whole and from his observation of the two witnesses the Trial Examiner is convinced that Andersen is the more reliable and that his version of the conversations between Bridgeman and himself is the more accurate. The Trial Examiner therefore finds that on July 12, 1956, Bridgeman applied for a job as foreman and at no time thereafter applied to the Respondent Company for any other type of job. Lloyd Watson, business agent of the Respondent Union, testified that on July 3, 1956 (some 9 days before the Respondent Company employed any laborers at the Grand Tower project), Bridgeman called at his home and told him that Andersen (who did not arrive at Grand Tower until July 9) had given him (Bridgeman) a job as foreman. Watson testified: He told me, he said that he was going to work for Foundation Company, he said, I've got a job as a labor foreman. I told him to go ahead and go to work if he had the job as a foreman. Q. Did he tell you who had given him the job as a foreman?-A. Mr. Andersen. Q. Let's get back to what was said. Did Mr. Bridgeman say anything else to you?-A. Not until they started to go. Q. What did he say when they started to go?-A. I am going down as a foreman.. Q. And you are sure that this took place at your house, this was not a telephone conversation that you are talking about?-A. That was in front of the house. Q. On July 3?-A. Yes, before the job started. Q. When did the job start?-A. Around the 12th. Watson further testified that shortly before July 23, the date being fixed by the fact that on that date Bridgeman filed a charge against the Respondent Union in the Fourteenth Regional Office (later withdrawn), Bridgeman again came to Watson's home, demanded that he be given a job with the Respondent Company, was told by Watson that no jobs were available there but was offered a job elsewhere which Bridgeman refused. Watson further testified that prior to July 23, Bridgeman telephoned him "Ten or 12 times." According to Watson: He'd call me and say, now, Cucklebur, I've got a job down at Foundation as a foreman, and he said, are you going to stop me. And I said, no, and then he'd harp about Tunney saying that they had an election, and I didn't know anything about the election and I didn't care. Bridgeman denied that he ever told Watson he had a job as foreman with the Respondent Company or had been promised such a job by Andersen. He further testified that he telephoned Watson only once and denied saying during this conver- sation that he had or had been promised a foreman's job. Watson testified that Bridgeman "Always when he asked me for a job it was a foreman's job," testified that neither Andersen nor any other representative of the Respondent Company ever requested Bridgeman's services from him, and testified that in his conversations with Andersen the matter of employing Bridgeman, was never mentioned. FOUNDATION COMPANY 1465 Tunney Ellet, the Union 's steward , who in reality selected the laborers hired by the Respondent Company, testified he never talked to Andersen about Bridgeman except that after Bridgeman 's charges against the Union had been filed (July 23) he was asked by Watson to obtain from Andersen "a statement whether or not Andersen had offered Bridgeman a job ." Ellet asked Andersen for such a state- ment and was given a letter reading: Mr. Bridgeman has asked me several times for a job . To date I have not promised him any sort of a job. (Signed ) CARSTEN ANDERSEN, Superintendent. Conclusion Bridgeman has been a member of the Respondent Union since 1949 ; he knew of the Union 's plan (voted on by the members ) to place its members exclusively with the Respondent Company on the Grand Tower job as fast as they were laid off by other contractors on the same job; and he apparently felt that Union Steward Ellet would stand in the way of his employment by the Respondent Company. It would therefore seem logical that he decided to circumvent the Union 's plan by seeking a job as foreman over which selection the Union had no control. When he first met Andersen he told him that he had once been a foreman in the Respondent Company's employ, asked for a foreman 's job and volunteered his "little defugity" with Ellet . In his testimony he clearly attempted to create the impression that because of this volunteered statement Andersen was so concerned with Bridgeman's "troubles with the Union " that Andersen refused him employment. While it is clear that Watson erred in his testimony that Bridgeman told him on July 3 that Andersen had given him a foreman 's job, and although Watson repudiated this testimony later on examination by the Respondent Union, the Trial Examiner finds no reason to doubt Watson 's further testimony with respect to the latter conversations in which Bridgeman "always when he asked me for a job, it was a foreman's job." In coming to this conclusion the Trial Examiner credits Watson and not Bridgeman where the testimony of the two is conflicting . In the opinion of the Trial Examiner the evidence viewed as a whole as well as his observation of the two witnesses permits no other finding. There is nothing in this record to show that 'any knowledge the Respondent Company had regarding Bridgeman 's desire to enter its employ came from any source other than Bridgeman himself. There is likewise nothing in this record which shows that the Respondent Union brought any pressure on the Respondent Company to cause it to refuse employment to Bridgeman . There is nothing to show that Bridge- man's name was ever mentioned by the Respondents to each other as a prospective employee or otherwise until after July 23. There is nothing to show that the refusal to employ Bridgeman came from any other than the Respondent Company alone, and it was entirely without illegal motivation and likewise entirely without any coercion by the Respondent Union. The Trial Examiner is therefore convinced that the Respondent Company did' not discriminatorily refuse employment to Charles L. Bridgeman because he had not been cleared or referred to it for employment by the Respondent Union under the illegal terms of a contract between the said Union and the said Respondent Company. The Trial Examiner is further convinced that the Respondent Union did not cause or attempt to cause the Respondent Company to discriminate against said Bridgeman in violation of the Act. The Trial Examiner so finds. Unlawful Contract Provisions The General- Counsel argues in his brief that: The union ,security provisions of the effective contract are violative of Section 8 (a) (1) and ( 3) and 8 (b) (1) (A) and (2) of the Act because the Union was not in compliance with Section 9 (f), (g) and (h) of the Act at the time the union security agreement was made. The contract was' executed on July 11, 1956. The facts with respect to the Union's compliance, all of which were stipulated during the hearing, are as follows: The Union was in compliance with Section 9 (f), (g), and (h) of the Act from July 11, 1955, until December 31, 1955. The Union permitted its compliance to lapse on December 31, 1955, and did not again achieve full compliance with the Act until July 31, 1956, 20 days after the contract was executed. Thereafter, the Union remained ' in compliance until December 31, 1956 , at which time it again permitted 1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its compliance to lapse. The Union remained out of compliance from December 31,, 1956, until May 13, 1957. Since the Trial Examiner has found that the union-shop provisions of the agree- ment between the Respondents covering the Grand Tower operation are illegal and since it has been found that there has been no discriminatory discharge, the Trial Examiner is of the opinion that the question of compliance with Section 9 (f), (g), and (h) of the Act by the Respondent Union has.not been reached and there- fore need not be considered in this report. Ambiguous contract language: Having alleged that the Respondents, Union and Company, respectively, violated Section 8 (b) (2) and 8 (a) (3) of the Act: By executing the union-security clause referred to . . . in ambiguous language so that the employees are unable to know whether they are free from closed- shop conditions, and enforcing it, the General Counsel argues in his brief that inasmuch as the contract between the Respondents contains a clause with respect to a closed shop if certain conditions will prevail, which is couched in language considered ambiguous by the General Counsel and further because: Moreover, as there is no evidence that the employees were advised that the closed shop contract would no longer be operative, its continued existence in the agreement in these circumstances is violative of 8 (a) (1) and (3) and 8 (b) (1) (A) and (2). The argument advanced in the General Counsel's brief in the opinion of the Trial Examiner is merely an ingenious departure from the allegation that the use of language considered ambiguous by the General Counsel is of itself an unfair labor practice. The Trial Examiner sees no merit in the contention and will recommend that the allegation to the effect that the Respondents engaged in unfair labor practices by the use of ambiguous language in wording their agreement be dismissed. The Allegation That Bridgeman Was Expelled from Membership in the Union The complaint in Case No. 14-CB-415 alleges: On or about September 26, Respondent [Union] . . . fined Charles L. Bridge- man $80 and expelled him from membership in Respondent Union. As a consequence of his expulsion from membership and of the unlawful hiring arrangement referred to . . . above, said Charles L. Bridgeman has been de- prived of opportunities for employment within the jurisdiction of the Respondent [Union] herein. The General Counsel contends that this alleged disciplinary action taken by the Union against Bridgeman constitutes ' restraint and coercion within the meaning of Section 8 (b) (1) (A) of the Act. The record discloses that Bridgeman was not expelled from the Union and is now and has since 1949 been a member. The Trial Examiner is of the opinion that under all the circumstances herein the above-cited allegation relates to the internal affairs of a labor organization, not within the purview of the Board. Final Conclusions Since the Trial Examiner found as to Case No. 14-CA-1559 that the Foundation Company by executing the contract containing the union-security clause referred to herein and by recognizing the Union as the exclusive bargaining agent of its em- ployees, at a time when the Respondent Company did not have in its employ a rea- sonably full complement of employees falling within the job classifications covered by said collective-bargaining agreement, has interfered with, restrained, and coerced and is interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act. The Trial Examiner finds that Foundation Company did not discriminate against Charles L. Bridgeman with respect to his hire and tenure of employment and the Trial Examiner will therefore recommend that the complaint be dismissed insofar as it so alleges. The Trial Examiner further finds as to Case No. 14-CB-415 that by executing the collective-bargaining contract hereinbefore referred to, Local No. 160, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, the Respondent Union, has restrained and coerced and is restraining and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, more particularly FOUNDATION COMPANY 1467 Section 8 (b) (1) (A) thereof . The Trial Examiner further finds that the said Local No . 160, International Hod Carriers , Building and Common Laborers Union of America , AFL-CIO, the Respondent Union , at all times material hereto has main- tained and enforced and continues to maintain and enforce an agreement or mutual understanding with the Respondent Company whereby the Respondent Company agreed to hire only those laborers who have been referred or cleared for employment by the , Respondent Union , in violation of Section 8 (b) (2) of the Act. The Trial Examiner finds that the said Respondent Union did not cause or attempt to cause the Foundation Company to discriminate against Charles L. Bridgeman as alleged and, did not engage in any unfair labor practices except those specifically found above. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents (Company and Union) set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent Company and the Respondent Union have engaged in unfair, labor practices, it will be recommended that each of them cease and desist therefrom and take certain affirmative action, designed to effectuate the policies of the Act. Having found that the Respondent Company, Foundation Company, New York, New York, at its Grand Tower, Illinois, operation has unlawfully recognized and rendered support to the Respondent Union and unlawfully entered into a collective- bargaining contract containing union-security provisions, it shall be recommended that the Respondent Company withdraw and withhold all recognition from the Respondent Union as the collective-bargaining representative of its employees, unless and until it is certified by the Board as such representative, and cease giving effect to that contract or to any extension, renewal, modification, or supplement thereof, or to any superseding contract until such recognition is afforded the Respondent Union. Since it has been found that Local No. 160, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, has engaged in conduct viola- tive of Section 8 (b) (1) (A) and 8 (b) (2) of the Act, it will be recommended that the said Union cease and desist from giving effect to, maintaining, or enforcing, or causing or attempting to cause the Respondent Company to give effect to, maintain, or enforce, any arrangement requiring membership in the Respondent Union as a condi- tion of employment by the Respondent Company, or in any manner causing or at- tempting to cause the Respondent Company to maintain or enforce any employment practice requiring such membership as a condition of employment, except if hereafter lawfully established in conformity with the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of Foundation Company (New York, New York) constitute trade, traffic, and commerce among the several States within the meaning of Section' 2 (6) and (7) of the Act. - 2. The Respondent Union, Local No . 160, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By entering into an agreement, understanding, or arrangement requiring mem, bership in the Respondent Union as a condition of employment and by maintaining and enforcing an employment practice in accordance therewith, the Respondent Company engaged in unfair labor practices within the meaning of Section 8 (a) (3) and 8 ( a) (1), and the Respondent Union engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent Company and the Respondent Union have not engaged in un- fair labor practices by reason of the allegation contained in the complaint relating to Charles L. Bridgeman or any other alleged unfair labor practice not herein specifically found. [Recommendations omitted from publication.] Copy with citationCopy as parenthetical citation