Huber, Hunt & Nichols, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1961

134 N.L.R.B. 348 (N.L.R.B. 1961)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any respect by antiunion animus. I am further persuaded by the fact that McAuliffe
did not hire six former employees of Owens, Inc.
Further, I find that the Felices ' employment by Owens, Inc., was terminated on
September 17; and that Respondent 's failure to employ the Felices was not in viola-
tion of Section 8(a)(3) and ( 1) of the Act . Also, that the refusal to employ was
an exercise of judgment which was not influenced by any antiunion proclivities on
the part of Respondent.
-CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent's failure to hire the Felices was not a violation of Section 8(a) (3)
and (1 ) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
i
Huber, Hunt & Nichols, Inc. and Thomas McAboy, Jr., Charg-
ing, Party and International Hod Carriers , Building & Com-
mon Laborers Union of America , AFL-CIO , Local No. 70,
Party to the Agreement
International Hod Carriers, Building & Common Laborers
Union of America, AFL-CIO, Local No. 70; Wilmer Kimble,
President ; Harold Lang, Secretary-Treasurer ; Lemard Griffin,
Recording Secretary-Steward and Thomas McAboy, Jr., Charg-
ing Party and Huber, Hunt & Nichols , Inc., Party to the
Agreement . Cases Nos. 15-CA-1795 and 15-CB-487. November
16, 1961
DECISION AND ORDER
On March 10, 1961, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaints and recommending that the complaints be dismissed
in their entirety, as set forth in the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
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 [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in these
cases , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaints.]
134 NLRB No. 33.
HUBER, HUNT & NICHOLS, INC.
INTERMEDIATE REPORT
349
STATEMENT OF THE CASE
Upon charges, as amended, filed by Thomas McAboy, Jr., the General Counsel
for the National Labor Relations Board, by the Regional Director for the Fifteenth
Region (New Orleans, Louisiana), issued complaints in the above cases, dated Octo-
ber 25, 1960, alleging, as appears hereafter, that the Respondents had engaged in and
are engaging in unfair labor practices within the meaning of various provisions of
the Act. On the same day the Regional Director issued an order consolidating the
cases for hearing. The answers deny the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Mobile, Alabama, on November 28
and 29, 1960, before the duly designated Trial Examiner. All the parties were rep-
resented by counsel, except the Charging Party who appeared in person, and were
afforded opportunity to examine and cross-examine witnesses and to introduce evi-
dence bearing upon the issues of the case. In accordance with the right granted all
parties, counsel for the Respondents presented oral argument at the conclusion of
the hearing and thereafter counsel for the General Counsel and counsel for the Re-
spondents submitted briefs, which I have carefully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
Counsel stipulated that the Company, an Indiana corporation, maintains its princi-
pal office at Indianapolis, Indiana, where it is engaged in the general construction busi-
ness in Indiana, Alabama, and various other States in the United States. In .the year
preceding the issuance of the complaints, which is representative of its business, the
Company received in excess of $50,000 for services performed outside the State- of
Indiana and in excess of $100,000 for services performed for customers located
within the State of Alabama, which customers shipped goods or performed services
in excess of $50,000 annually, outside the State of Alabama. The Respondents
concede the Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVED; THE INDIVIDUAL RESPONDENTS
Counsel stipulated that International Hod Carriers, Building & Common Laborers
Union of America, AFL-CIO, Local No. 70, is a labor organization within the mean-
ing of -Section 2(5) of the Act. I further find that the individuals named as Respond-
ents are officers and agents of Local No. 70 within the meaning of Section 8(b) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
In substance the complaints, as amended, allege that since about March 15,'1960,
the Respondents have by practice, understanding, or agreement maintained an unlaw-
ful hiring arrangement and since about May 13, 1960, the Respondents have dis-
criminatorily denied employment to McAboy, all in violation of Section 8(a)(1)
and (3) and Section 8(b)(1)(A) and (2) of the Act. The answers deny the com-
mission of any such unfair labor practices.
B. The job and individuals involved in the proceeding
About March 29, 1960, the Company, as one of other contractors, commenced
construction of an addition to the plant of Scott Paper Company, at Mobile, Alabama.
At all times material herein the following-named persons held the positions appear-
ing next to their names: Knofel E. Mattox, job superintendent; William C. Boykin,
bookkeeper; Wilmer Kilmer, president, Local 70; Harold Lang, secretary treasurer,
Local 70; McKinley Perkins, business agent, Local 70; Lemard Griffin, recording
secretary, Local 70; and S. A. Alsup, representative, Mobile Building Trades
Council.
C. The prejob conference
About March 15, 1960 (all dates refer to 1960), the above-named individuals,
except Lang and Griffin, and representatives of some 18 or 19 unions affiliated with
the Mobile Building Trades Council met at the company office at the jobsite. The
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of the meeting was to discuss jurisdiction of the various crafts, the work
rules of the locals, and hiring procedures. Alsup acted as spokesman for the locals,
including Local 70.
Mattox, as a witness for the General Counsel,' testified that the parties discussed
the working rules of the various locals and that he agreed to call the locals, including
Local 70, for all men "whenever it was at my convenience." Later, the General
Counsel presented Mattox with a statement, which Mattox acknowledged, and he
reaffirmed the truthfulness of his account of the meeting set forth therein, as follows:
and I told him [Alsup] I would abide by the Local's rules and practices.
I had the Laborers Working Rules and tried to abide to them as best I can.
We'd pay union wages and abide by other working conditions set out in the
Local's working rules. I told the various union agents that we would abide by
,their rules as best I could and would call the halls for all my men. Lang and
Perkins of Local 70 Laborers attended this confereence and I told them as well
as the other agents of various locals this.2
Mattox further stated he told the union representatives he reserved the right to fefuse
to hire anyone sent by the locals, but he could not recall how the subject arose, or
for what reasons he could decline to hire any man, or what, if anything, the union
representatives said on that point.
Boykin, when questioned regarding the discussion on employment practices,
responded:
Well, there was to the extent we would call the hall, call the various locals for
men, that we would not make specific request for any particular man . . . that
was the agreement. I mean, there was nothing I don't think binding. If we
insisted on a particular man we could have gotten that particular man.
It is undisputed that Mattox made it clear that he alone had the authority to hire
and fire and that he or Boykin would call the various locals when men were needed.
It is equally plain that shortly after the conference Alsup sent Mattox the pay scale
for the various locals as well as copies of their bylaws and working rules.
At the time of the prejob conference, the Mobile Building Trades Council had a
collective-bargaining agreement with the Associated General Contractors of America,
Mobile Section, Alabama Branch (herein referred to as the AGC agreement), which
contained a "Referral Clause," or model hiring hall clause in line with the standards
announced in the Mountain Pacific case.3 Alsup testified he negotiated the AGC
agreement on behalf of the locals and at the prejob conference he asked Mattox if
he was in a position to sign the agreement. Mattox refused to sign the agreement,
but said "he would employ men under the conditions so long as we could furnish
them with competent and efficient personnel," otherwise he would employ at his
own discretion. Mattox further stated that while he would not sign the agreement
he would recognize it since the Company was a member of the AGC. Alsup said
Mattox was "very emphatic" on his right to hire competent men at the jobsite and
that he wanted to bring in his own general labor foreman, Mitchell Cieutat. Alsup
told Mattox he had the "privilege" of hiring his key personnel.
Mattox stated that while Alsup may have sent him a copy of the AGC agreement
he never signed it and the only agreement he had with the locals and Local 70 was
the oral agreement described at the prejob conference. The oral agreement was
not reduced to writing and posted at the jobsite.
Lang stated he never discussed the AGC agreement or the referral clause with
the Company. When asked whether a notice concerning its hiring hall practice had
been posted on the bulletin board of Local 70, on March 15, Lang said a notice of
the "model hiring hall system" had been posted for more than a year. Later, when
asked if the referral clause of AGC agreement was posted at the office of the local,
Lang said it was posted at one time but "not at that particular time," presumably the
time in question
Perkins, when asked if the Company "was supposed to come through the hall,"
answered, "That's right," but "It wasn't carried out like that. They hired some
through the hall and they hired some at the gate."
1There is no doubt Mattox was called as a witness under Rule 43(b) of the Federal
Rules of Civil Procedure, although the record shows he was called as a witness under
the "statute "
a It was Kimble, not Lang, who attended the conference
'Mountain Pacific Chapter of the Associated General Contractors, Inc.; et at., 119
NLRB 883.
HUBER, HUNT & NICHOLS, INC . 351
D. Local 70's referral system
Lang's duties as secretary-treasurer included the handling of initiation fees and
dues and the referring of men to jobs. The local for many years has used the "one-
list system, first-in-first-out." Applicants for employment, both union and nonunion
members, were and are entitled to register for the list by appearing in person at the
union hall on Thursday afternoon and filling out a card giving tneir name, social
security number, type of work performed, and the contractors they previously worked
for. As requests for men were received from employers, and they were not sup-
posed to ask for particular individuals, the men were referred in accordance with
their standing on the list. The local had no fixed hours for dispatching men but if
the top men on the list happened to be out of the hall when the job announcement
was made they did not lose their standing on the list. After a man had been referred
to a job his name remained on the list for 2 days, but if he worked 3 days his name
was removed therefrom.
Lang stated that for some years it was the policy of the local to refer a man to a
job he himself had obtained, provided he had a written request from the employer.
However, sometime after the filing of the present charge, July 14, Lang stated a
man may not seek his own job and then request a referral thereto. When asked if
an employer could request an individual by name, Lang said, "He could in a way
and then he is not supposed to otherwise."
As already stated Local 70 posted a copy of the model hiring hall system at its
office. Lang said the local was trying to operate under that system but admitted the
local was not using the "four group system" outlined therein for the reason that
laborers are considered as semi and unskilled workmen, so the local considers them
as able to do all types of construction work and, therefore, places them in one
classification.4 Lang conceded the local's one-list system, as such, was not posted
at its office.
Alsup, who has acted as business representative for the Council for 14 years and
business manager for the Ironworkers Union for 18 years, testified it was "prac-
tically impossible" for Local 70 to classify men in the "four group system" for the
reason that laborers have no mechanics or apprentices and they are all classified in
one group as "common laborers."
E. Hiring procedures on the job
Preliminarily, the addition to the Scott plant was being constructed in a fenced-in
area, which was protected by guards employed by Scott, and passes or other iden-
tification were required to gain admittance into the property.
Mattox hired Cieutat as general labor foreman (he did not give the date) and
instructed him to obtain enough men to get the job started. In line with these
instructions Cieutat selected the necessary men and Mattox or Boykin actually hired
them and placed them on the payroll. Obviously, this went on for about 2 weeks
when Mattox posted a notice, dated March 29, on the outside of the office at the
jobsite, the gist of it being that Mattox would do all the hiring. Thereafter Mattox
stated that when laborers were needed Cieutat would go to the gate to see if any
men were available and, if so, he would bring them to the office to be hired. Mattox
said he always followed Cieutat's recommendations regarding the hiring of indi-
viduals. He also testified he called the Local 70 hiring hall for some, but not all,
of his men. Mattox reaffirmed the following description of the Company's hiring
practices as contained in his above-mentioned statement to the General Counsel:
To the best of my knowledge every laborer we have hired has been out of
Local 70 and we take up their referrals and note that he was referred from
Local 70 and then we would give the slip back to the man who, in turn, presents
it to the labor steward, E. L. Lewis from Local 70 and goes to work. If the
labor steward sees the man working without a referral slip he will come and
asked us to pull him off the job.
Mattox testified that he left the selection of laborers, around 90 in number, to
Cieutat and he did not personally know whether Cieutat obtained the men at fl-
gate or through Local 70. He further stated that he never asked any man wh: her
he had a referral from Local 70. Mattox also stated that he himself hired three men,
Kamp, Beverly, and Bass, as rodmen, which is considered laboring work coming
under the jurisdiction of Local 70. Again, he said that on several occasions he hired
* The model hiring hall system provides for the registering of men in the highest of
one of four groups for which he is qualified. These groups relate to mechanics, appren-
tices, and time spent in the trade.
352 "DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborers after they had been laid off by other contractors on the job, without going
through the local for clearance or referral . The Company's carpenter foreman,
Swanson , likewise hired laborers at the gate.
Boykin stated the Company employed about 100 laborers at one time and that
Cieutat as general foreman had supervision over these men as well as the labor
foreman immediately assigned to groups of 15 or 20 men . Boykin called Local 70
for men and occasionally requested a particular man be referred . He also heard
Mattox call the hall for laborers , but not by name. Boykin said while Cieutat had
no authority to hire men, he could recommend the employment of individuals and
his recommendations were followed . He further stated that since many of the men
employed had no referral slips he spoke to Perkins who informed him Cieutat
would know whether the man should have a referral card.
Boykin said Kamp , Beverly, and Bass were hired directly on the job, were not
members of Local 70, and did not have referrals from the local. These individuals
were all hired as rodmen or laborers and were paid laborers' wages , except Bass who
had just graduated from high school and he was paid the minimum wage.
While Cieutat was obviously engaged as general labor foreman at an early date
he did not actually go on the job until about 6 or 8 weeks after it had started . Cieutat,
a member of Local 70 for some 20 years, said he selected his initial crew on the
basis of past performance regardless of membership or nonmembership in Local 70.
Cieutat had no authority to hire, but recommended that Mattox hire the members
of the initial crew, and his recommendations were followed by Mattox . These men
were hired without referrals from Local 70. He further stated that of the normal
labor force of about 90 persons , 12, 15 or 20 were hired without referrals from the
local, including some direct hirings by Mattox , who assigned the men to him . Cieutat
admitted he sent some men to the hall with notes stating, "I can use this man," or
"Fix him up and send him to me ." However, he said he did not demand a referral
from the local. Later, he denied that he ever sent an applicant for work to the Local
70 hiring hall for any reason whatever. Cieutat also stated that Carpenter Foreman
Swanson directly hired Melvin Tate and John Tate, who had worked for him on a
previous job.
Lang said he referred men at the request of Mattox , Boykin , and Cieutat. The
men referred at Cieutat 's request presented notes or statements to Lang asking that -
the particular individual be referred and referrals were granted on that basis.
James Tanner had been a member of Local 70, but had been suspended at the time
in question . Tanner was hired directly and without referral by Lee Hill, a member
of Local 70 and foreman for Campbell Plumbing Company, which was working on
the Scott addition. Later, sometime after March, Tanner was hired by Cieutat with-
out any referral from Local 70 and worked for the Company for about 5 months.
While working for the Company, Tanner stated that, without any prior conversa-
tion on the subject with Lewis, Local 70 job steward, he gave Lewis a partial payment
on his initiation fee in the local. This sum was returned to him by Lewis who in-
formed him that the local did not accept partial payments . Lewis said Tanner could
not work unless he paid the full amount and then "knocked off" Tanner so he could
raise the money and give it to the local . Tanner was off a couple of hours during
which time he paid his initiation fees to Local 70 and then returned to the job.
Tanner stated Cieutat did not speak to him about the matter of initiation fees and
that Cieutat "didn't know anything about it. .
John Tate , a member of Local 70 , testified he spoke to Cieutat regarding a job
and about 2 or 3' weeks later he was referred to the job through the local hiring
hall. Tate worked under Swanson and was employed for about 51/z months.
Lemard Griffin was referred to the job by Local 70, was recommended for em-
ployment by Cieutat , and actually hired by Boykin . Griffin was one of the first men
hired , around April, and was still employed on the job. Warren , or Robert Dean,
a nonunion member, was referred by Local 70 and hired at the same time Griffin
was hired. Two other nonunionmen , Tanner and Leonard Griffin, also worked on
the job . All three of these men worked for about 5 months or until they were laid
off in October . Dean and Leonard Griffin joined Local 70 while employed on the
job but Lemard Griffin did not know the circumstances under which they joined.
Lemard Griffin also stated he heard Tanner say he had joined Local 70.
Kimble testified that some 20 or 30 members of Local 70 were hired without
referrals , including Sidney Mitchell , Alton Reddick , and Hillery Dean . At least
three nonunion members, Tanner, Eddie Winston , and Earl Love , were hired without
referrals from Local 70 . Kimble could not recall that he referred any nonunionmen
to the job.
Kimble also testified he was familiar with the duties of a rodman and that Local
70 exercises jurisdiction over such employees . He stated that the local has supplied
rodmen to contractors in the past and currently had men working as such.
HUBER, HUNT & NICHOLS, INC. 353
F. The alleged discriminatory treatment of McAboy
At one time McAboy was a member of Local 70, was and is a close friend of
Lang, and friendly with all the officers of Local 70. While a member of the local,
McAboy was temporarily employed as a dispatcher and his duties included the
referring of men to jobs, udder the single -list system and collecting initiation fees
and dues, in the absence of Lang. Admittedly , McAboy was suspended from Local
70 for nonpayment of dues about 2 or 3 years prior to the date of the hearing
herein . Following his suspension , McAboy frequently went to the office or the
hall of Local 70.
In February , McAboy went to work for the Alferbaoh Construction Compnay on
a job in Mobile. Initially the job was nonunion but later it became a union project
and McAboy continued to work thereon for a period of 3 weeks . McAboy did not
state the circumstances under which his employment was terminated , but this is
immaterial since there is neither allegation nor contention that he was discrimina-
torily discharged . Seemingly , McAboy, while working on the Alferbach job, de-
cided "to pay up" and restore his membership in Local 70. Accordingly, on
March 18 and 25, he voluntarily gave Lang $20 and $10, respectively , as partial
payments on his initiation fee, which Lang agreed to hold for him. From his past
experience McAboy knew the local did not accept partial payments on the initiation
fee, except where there was a checkoff on the job , and there was no checkoff on the
Alferbach job. After his layoff, McAboy decided to "withdraw " his payments be-
cause he was out of work , so Lang at his request returned the money to him.
McAboy testified that in the latter part of March or early April he met Cieutat
at the Local 70 hall, that the two of them left the building and had a conversation
on the street near Cieutat 's car. McAboy had heard Cieutat "was going on" as the
general foreman for the Company and told him that he needed work and would he
give him a job. Cieutat said he would help him and give him a job "when things
got lined up ." McAboy also spoke to Cieutat about buying a pig'from him for a
barbecue , and, apparently , the conversation ended on that note.
Sometime later, in April , McAboy and John Stallworth stopped by the job and
talked to Cieutat . McAboy brought up the subject of buying a pig and then asked
how the job was coming along. Cieutat said the weather had been bad and to.
check with him the following Tuesday. In the course of their conversation McAboy
asked Cieutat to give Stallworth a job and he said that he would.
McAboy and Stallworth talked to Cieutat at the job the following Tuesday, May 3.
Cieutat said the job had been held up by weather conditions and to come back the
next Wednesday or Thursday , May 11 or 12.
In line with Cieutat 's suggestion , McAboy went to the job the next Wednesday
or Thursday , this time accompanied by John Tate . Cieutat told him he thought he-
had the job lined up but he would go inside and check , that if he needed some men
"he would give us a call ." McAboy stated they were going to the local hall, which
they did.
After remaining at the hall for 20 or 30 minutes McAboy told Tate he was going
"to the employment office to see what I could scout up," and would be back. Upon.
McAboy's return to the local hall , Lang inquired where he had been and then stated
that Griffin had called for him and Tate . McAboy then gave the following version
of Lang's conversation with him:
"And I [ Lang] sent him Tate and told Griffin you wasn't paid up in the Local,,
and I couldn't send you but I'd send him Tate. Tell him that and find out what
he wanted to do and let me know ." Griffin , he told Lang-he told me that-
Griffin told him that he would tell Mr. Cieutat and whatever Mr. Cieutat
wanted to do would be all right , perfectly all right with him.
Following the above conversation McAboy went to the jobsite and talked to.
Cieutat on the parking lot, after working hours. McAboy related what had hap-
pened at the hall and Cieutat said he had called for him. McAboy complained the
local had his money but would not give him a job and would Cieutat put him to
work . Cieutat said he would give him a job and to "Come back Tuesday morning,"
May 17. Cieutat then drove McAboy and "a witness," whose name he could [not]
recall , back to town.
Upon arriving in town McAboy and his "witness " went to the hall of Local 70'
where they met with Perkins . McAboy informed Perkins he wanted to see him'
about a work referral , that Cieutat had told him to come to work Tuesday, and that
he had a witness to prove it . Perkins replied he believed McAboy, that he did not
need a witness , and that he would give him a referral on Monday , May 16 . Perkins
remarked , "These guys," Local 70 officials , are scared of the coming election of-
630849-62-vol. 134--24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
local officers, but he was the only one who should be worried.5 Apparently, that
ended the conversation.
On Monday, May 16, McAboy met with Perkins at the office of Local 70. Perkins
stated he could not give McAboy a referral because Kimble was opposed to his do-
ing so and commented the officials were worried about the election. Kimble then
entered the office and Perkins remarked, "He [Kimble] won't give you a referral."
Kimble answered that was true, that it was too close to election time. Kimble
further stated:
"McAboy, you know too many people out there where you can get $70.00."
He says, "Go out there and get $70.00 and come back here and I'll give you a
referral."
McAboy then left Perkins' office and asked Lang for a referral, but Lang refused
his request. McAboy thereupon left the hall or office of Local 70.
On 'cross-examination, McAboy admitted he made no effort to register for
employment with Local 70. On redirect examination he sought to explain his
failure to do so by stating that when he was dispatcher 2 or 3 years previously,
nonunionmen were told there were union members looking for work. McAboy
wound up by saying that he did not know anyone who had been refused registration
on the list. -
About a week after the foregoing meeting McAboy conferred with his attorney
in regard to the filing of charges and during their conversation McAboy inquired
if a statement from Cieutat would help his case, and his attorney said that it would.
The same day McAboy went to the parking lot at the jobsite where he met Cieutat
after working hours. Cieutat opened the conversation by stating he had no place
for McAboy at that time. McAboy said he did not come to get a job, that he wanted
"a statement to send the International setting Mr. O'Neal here on the fellows."
Cieutat asked what kind of a statement he wanted and McAboy answered, "I want
a statement from [you] that you did tell me to go to the hall to get a referral and
I was refused a referral." After discussing dates, McAboy gave Cieutat a notebook
and requested him to write out the statement. Cieutat declined and told McAboy
to write it, whereupon McAboy wrote the following statement which was received
in evidence at the heaiing:
I Mitchell Cieutat did tell Thomas McAboy on the 5/13/60 to go to the
union hall and get a rifler card and report to work 5/17/60.
Cieutat signed the statement and under his signature printed his title, concrete
foreman, the name of the Company, and the location of the job. After securing
the statement McAboy admitted he made no effort to contact the International
representative, nor did he attempt to bring the matter to the attention of any
representatives of Local 70.
Kimble testified he had known McAboy for 20 or 25 years and he had put him
to work on at least one job in 1959, Ferral Construction Company, and in 1960 on
the Alferbach job, although McAboy was not a member of Local 70 and was not
on the hiring list. McAboy worked on the Alferbach job for about 2 months and
during that period Kimble mentioned he had been on several union jobs since he
had been out of the local and that he should come back into the local. McAboy
said he would but did nothing about it.
Kimble said that a week or two after his layoff at Alferbach, McAboy came to the
hall and asked for a referral to the Company job at Scott Paper Company. Kimble
informed McAboy that since he did not have a statement or a request for employ-
ment from the Company he could not give him a referral Kimble said this was
the only conversation he had with McAboy regarding a job referral. He also
denied he ever discussed union politics with McAboy On cross-examination the
General Counsel developed that about August_ 3, Kimble gave him a statement in
which Kimble said McAboy had asked to be referred to the job, "but he had not
been called for and no one had given him a statement to that effect, that he would
be hired if he had a referral slip. Perkins was present during the conversation."
Kimble confirmed the truthfulness of his statement.
Perkins was well acquainted with McAboy and while he was working on the
Alferbach job he was a frequent visitor at the union hall. On one of these visits
Perkins told McAboy he should come back into the Union. Perkins did not refer
men to jobs but at times when a contractor would ask for a man he would send
one, without a referral. Perkins believed McAboy spoke to him about work, after
5 The union election was held in June and all the officers were reelected except Kimble.
Thereafter, Kimble was employed by Local 70 as assistant business representative.
HUBER, HUNT & NICHOLS, INC. 355
his layoff at Alferbach , and he gave him the same answer he gave other men,
"Yeah. I'll give you a job," because you have to tell them something . Perkins
denied having any conversation with McAboy regarding a referral , or that he was
present when Kimble or anyone refused to give him a referral . He also denied
that he discussed union politics with McAboy or stated he was worried about the
coming election.
Lang testified McAboy was, and still is, a very close friend of his and at one
time, when McAboy was a member 'of Local 70, he acted as his assistant in local
matters. In 1960, when McAboy was no longer a member of Local 70, he worked
on the Alferbach project for 2 or 3 months , which was a union job . While employed
on this job McAboy asked Lang to keep some money for him because he was trying
to get back into the Union . Lang made it clear he could not accept partial payments
on his initiation fee and McAboy agreed that was true . Lang then accepted the
money and later , when McAboy asked for the return of a portion thereof, he gave it
all to him.
Lang testified McAboy and John Tate came to the office one day, he could not
approximate the date, and stated Cieutat said he would put them to work if they
would get a referral from the local . Lang informed them to have Cieutat call him
or give them a note and he would then issue referrals to them. Lang further
told them that about 15 men had been in to see him that morning giving the same
stories and he had refused to issue them referrals unless the Company called for
them or gave them notes requesting their employment . Upon checking his referral
book Lang found Tate was referred to the Company on May 12. Lang did not
question the accuracy of his records but said he had no personal recollection of
the referral and could not remember whether Tate was given his referral as a result
of a telephone call or a note from the Company . The practice was to refer men
only on the basis of a telephone call or note from the Company and Lang did not
deviate from that practice for Tate or anyone else . He stated that although McAboy
was not registered he would have given him a referral if the Company had so
requested . Lang said that while he could not recall referring any nonunion men
to the job he knew nonmembers of the local had been hired directly and were
working on the project.
Cieutat stated that before assuming his duties as a foreman , he met McAboy
at the union hall at which time McAboy asked for a job. Cieutat told him to come
to the job later on and he would be glad to talk to him. Sometime later, when
Cieutat was working , McAboy met him on the parking lot and asked about work.
Cieutat told him to check with him from time to time. Later , perhaps 2 or 3 days
,or a week, McAboy again met Cieutat at the parking lot and this time he told
McAboy that they were getting ready to pour slab and, "Be here Tuesday morning
early for work." Cieutat made no mention of McAboy having to go to the union
hall or that he needed a referral from the Union . McAboy did not report for work
on Tuesday and Cieutat next saw him at the parking lot accompanied by the
General Counsel.
Cieutat denied having any conversation with McAboy in which McAboy requested
a statement to the effect that he had promised McAboy a job. When presented
with the written statement described above by McAboy, Cieutat admitted his signa-
ture and printing thereon, but denied any knowledge of the contents therein or the
writing above his signature . Cieutat said McAboy had mentioned buying a pig
from him and that he gave McAboy his name and home directions on a piece of
paper two or-three times . He also stated he had given his name and telephone num-
ber to many members of the local. Cieutat denied he ever sent men to the union
hall with notes of any kind.
Cieutat said he know John Tate but that he had nothing to do with his being
hired by the Company. Tate and his brother , Melvin, were hired by Swanson and
worked under him in the carpenter 's section.
John Tate, a member of Local 70, said he talked to Cieutat on one occasion about
2 or 3 weeks before he was hired . No other person was present during this conversa-
tion. Another time , before his employment , Tate was at the jobsite and saw McAboy
talking to Cieutat but he did not overhear their conversation . Seemingly, when
they left the jobsite Tate rode McAboy to the union hall. Tate stated that he went
to work sometime in May but he did not know who hired him , that someone called
the hall, and he was given a referral by Lang He reported to Foreman Swanson
and worked on the job for about 5 months When asked if he saw McAboy the day
he was referred to the job, he answered he saw McAboy coming into the hall as
he was leaving.
Stallworth testified that when the job first started he , McAboy, and Zefro Jackson
met Cieutat on the parking lot and asked for work. Cieutat said "He would give us
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a job when the job was stated good" and to come back the following Tuesday.
During their talk McAboy mentioned something about buying a pig from Cieutat.
The following Tuesday Stallworth and McAboy met Cieutat at the parking lot
and Cieutat told them , the job had been delayed because of bad weather but to
come back the next week when the job would be straightened out and "we'd probably
get on ." Shortly thereafter Stallworth obtained another job so he did not report
back as requested by Cieutat.
Boykin testified he had known McAboy since about 1956 , when McAboy was
employed as labor foreman on a job being performed by another company. Boykin,
said McAboy was fairly well educated and he considered him a good labor foreman,
although he had heard he was "somewhat overbearing " toward the men working
under him.
Boykin stated that as far as he knew McAboy never made any application for
work with the Company . However , he saw McAboy outside the construction gate-
one morning in early May and he asked what he was doing. McAboy said he was.
looking for a job and Boykin remarked the Company was hiring and "maybe they
might be able to use you." Boykin stated he had no conversation with either
Mattox or Cieutat concerning the employment of McAboy . Boykin further stated
that McAboy never asked him for a - referral and he never requested Local 70,
to issue a referral to McAboy. Boykin reiterated that he had no authority to hire
but if Mattox had asked his opinion regarding the hiring of McAboy he would have
recommended his employment.
Boykin related that sometime in early June he was present in the company office
when Lemard Griffin telephoned Lang and he heard Griffin ask if McAboy was in
"good standing ." The conversation lasted about 30 seconds . Boykin did not
question Griffin regarding the call , in fact he was at a loss as to the purpose thereof
since Griffin was simply employed as a laborer on the job and Lewis acted as steward.'
for Local 70.
Griffin said that on one occasion he received a message at work to call Lang, which,
he did, from the company office. The call amounted to nothing more than a request-
for Griffin to come to the local office to sign some checks. Griffin stated there was
no mention of McAboy during his conversation with Lang.
Lang was not questioned about this telephone conversation.
While Mattox was interrogated quite extensively in regard to the prejob conference,
hiring practices , and the hiring of certain individuals, he was not questioned at all'
concerning McAboy. The record, therefore , is barren of any evidence that he ever-
requested Local 70 to refer McAboy, or that McAboy ever applied to him for a job,_
or that McAboy was ever recommended to him for employment.
Concluding Findings
The issues here are purely factual and the first one to be resolved is whether the
Respondents entered into and maintained an unlawful hiring agreement or
arrangement. -
The touchstone of the General Counsel' s contention that such an agreement, or-
arrangement existed is Mattox 's testimony concerning the prejob conference, the-
gist of it being that he told the union agents he would abide by the working rules as
best he could and would call the various halls for men. He also related that al-
though the working rules of all locals, including Local 70, were discussed , he merely
agreed to call the halls for men "whenever it was at my convenience" and that he
reserved the right to refuse to hire anyone sent by the locals.
Boykin's version of the prejob conference was that the Company would call the
locals for men, but not by name. Perkins' account was that the Company was sup-
posed to come through the hall but did not do so.
Alsup asserted he requested Mattox to sign the AGC agreement but Mattox de-
clined, stating he would employ men under the conditions therein so long as the locals
could furnish competent men, otherwise he would hire at his own discretion . Alsup
further stated that Mattox reserved the right to hire at the jobsite and had the
"privilege" of hiring his key personnel.
It is clear that Mattox informed the union representatives that he alone had the
authority to hire and that he, or Boykin, would call the various halls for men when
needed.
When questioned by the General Counsel regarding the hiring of laborers, and
upon being presented with his written statement ( supra ), Mattox testified to the
effect that all laborers hired were out of Local 70, that they had referrals which were
shown to Mattox or Boykin and then to the job steward , and if a man did not have
a referral the steward requested that he be pulled off the job. However, Mattox_
I
HUBER, HUNT & NICHOLS,.INC. 357
qualified his testimony by declaring this hiring procedure was not uniformly fol-
lowed and he never asked any man whether he had a referral from Local 70. In
this respect it is undisputed that Cieutat and the initial labor crew were hired
directly by the Company, not through Local 70. It is equally clear that Mattox
hired Kamp, Beverly, and Bass as rodmen, without referrals from the local. Again
it is plain that the Company hired laborers who had been laid off by other contractors
on the job without clearance or referral from Local 70 and that Cieutat and Swanson
.selected men for hire at the jobsite.
I agree that selected portions of the testimony of Mattox and Boykin, together with
-favorable inferences to be drawn therefrom, would tend to support the General
Counsel's position that there was an illegal hiring arrangement between the Re-
spondents. On the other hand parts of their testimony tend to prove the contrary.
Certainly, the testimony of Mattox and Boykin is neither direct nor convincing but
rather qualified and at times inconsistent and vague. Considering the entire testi-
mony of these witnesses, I am unable to reach the conclusion that this evidence is
sufficient to warrant a finding that the Respondents entered into an unlawful hiring
agreement or arrangement at the prejob conference. Of course, there is no contention
that the Company ever signed the AGC agreement.
The General Counsel also argues that Alsup contradicted certain testimony of
Mattox and Boykin and stresses the point that Alsup gave the Company the "privilege"
of hiring its key personnel. The General Counsel characterizes adverse portions of
Alsup's testimony as "last hour" fabrications. I do not agree with this character-
ization, but assuming it has some merit it is strictly negative argument and adds
nothing to the General Counsel's case. Nor do I attach any significance to the fact
that Alsup said the Company had the "privilege" of hiring its key personnel. This
strikes me as simply a matter of semantics. Seemingly, if Alsup had stated the Com-
pany had the "right" to hire key personnel no illegal motive could be inferred from
his remark.
Not only does the record fail to show any unlawful hiring agreement or arrange-
ment but the hiring procedures followed by the Company prove that it did not secure
laborers exclusively from Local 70, nor was union membership or a referral a con-
dition of employment. The General Counsel concedes the Company hired at least
11 men without referrals, 8 of whom were not members of Local 70. The General
'Counsel argues that three of these men, Kamp, Beverly, and Bass, were not hired as
laborers but as rodmen, that they were not paid the prevailing wage, and the Com-
pany was under no obligation to call the hall for them. The evidence shows that
rodmen come under the jurisdiction of Local 70, that it referred rodmen to jobs, and
that Kamp and Beverly were paid laborers' wages, while Bass, a recent high school
graduate, was paid the minimum wage. The General Counsel further argues that
all or some of the nonumonmen joined Local 70 after they had been hired, which
apparently indicates that union membership was necessary to continued employ=
merit. While it is true some nonunionmen joined the local after they had been
hired, there is nothing in the record suggesting that the Company or Local 70 re-
quired membership in the local as a condition of employment.
Considering all the evidence, I find that General Counsel has failed to maintain
his statutory duty of proving by a fair preponderance of the credible testimony that,
the Respondents entered into an illegal hiring agreement or arrangement or that the
Respondents maintained, or engaged in, any unlawful hiring procedures 6
The record clearly shows that McAboy spoke to Cieutat about a job on four oc-
casions. The first time was prior to Cieutat's assuming his duties as general labor
foreman and Cieutat promised to help McAboy when the job was lined up. Later,
in April, McAboy and Stallworth talked to Cieutat who informed them the job had
been held up by bad weather but to check with him the next week. On May 3,
McAboy and Stallworth checked with Cieutat who stated the job was still held up
but to come back the following Wednesday or Thursday, May 11 or 12.
On the latter date McAboy and John Tate talked to Cieutat at the jobsite and he
told them he thought the job was lined up but he would have to check and if he
needed men he would call them. McAboy informed Cieutat "we were going to the
hall, which they did. McAboy related a somewhat garbled account of a conversa-
tion be had with Lang at the hall, the substance of it being that he could not refer
McAboy to the job because he was not paid up, that he had sent Tate, but if
Cieutat wanted McAboy it was satisfactory to him. McAboy thereupon returned to
the jobsite and complained to Cieutat that although the local had his money, "They
wouldn't give me a job." Continuing, he testified, "Will you give me a job?" and
9 N L R B. v Daniel Construction Company, 281 F. 2d 875 (C A. 4). Cf. Valley Steel
Products- Co , 111 NLRB 1338, 1345-1346.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cieutat replied , "Yes, IT give you a job. -... Come back Tuesday morning."
Certainly there is nothing in McAboy 's testimony remotely suggesting that Cieutat
conditioned his employment upon his securing a referral from the local. In fact his
testimony is entirely consistent with Cieutat 's account of the circumstances under
which he was offered employment . Moreover , there is no contention on the part of
McAboy that Cieutat mentioned the necessity of a referral card in any of their
previous conversations regarding work. But McAboy was not satisfied to simply re-
port for work as instructed by Cieutat . Instead McAboy immediately returned to
the union hall seeking a referral and, again , on May 16, he asked for a referral
which supposedly was refused by Kimble because of union politics . It strikes me
McAboy was more concerned with testing his ability to secure a referral , although
none was needed , or to build up a case for himself, than working on the job. This
is evidenced by the fact that he did not even report or attempt to work on May 17.
In this connection , when asked on cross-examination why he did not report, McAboy
answered Cieutat had previously told him he needed a referral to go on the job I
was not at all impressed with this cavalier statement for it was obviously offered
as a weak excuse or alibi for his failure to report for work and is inconsistent with
his detailed testimony concerning his conversations with Cieutat . I, therefore , reject
this testimony as indicating McAboy had to have a referral in order to work. Since
McAboy had been offered a job by Cieutat , and the Company did hire men at the
gate, it is reasonable to assume he would have been hired had he reported for work
at the jobsite. In any event McAboy's actions preclude any determination of the
question of whether it would have been necessary for him to have had a referral to
work on the project.
McAboy also produced the above -mentioned statement signed by Cieutat, which
recites Cieutat told him to get a referral card and report for work on May 17.
Admittedly , the purpose of this bare statement was to bolster McAboy's case and was
obtained from Cieutat on the pretext that he was sending it to the International
Union. Cieutat conceded his signatures appear on the writing , but denied any
knowledge of the statement above his signatures . He offered various explanations
as to why he may have given McAboy his name on a blank piece of paper, none of
which seem reasonable or plausible . I find he signed the statement . I am also
convinced , from my observation of Cieutat while testifying , that although he may be
a good labor foreman he was wholly unaware of the technicalities involved in hiring
hall procedures and he had no idea of the intended import of the statement which
McAboy prepared and persuaded him to sign . Of course , if the statement was rea-
sonably consistent with the testimony it could be considered as corroborative evi-
dence, but it is plainly contrary to McAboy 's own version of his conversations with
Cieutat regarding employment . As there is no question McAboy was denied a re-
ferral card, it is obvious the purpose of his statement was to show an initial request
therefor by Cieutat , thereby clinching his case against the Company and Local 70.
I have carefully considered the statement along with other evidence in the case and,
under all the circumstances , I find the bare assertion regarding the referral has little,
if any , probative value.
I, therefore , find that Cieutat's offer of employment to McAboy was not condi-
tioned upon his securing a referral from Local 70.
The General Counsel contends that the officers of Local 70 discriminatorily refused
to refer McAboy to the job in order to protect their positions in the forthcoming elec-
tion in June . Undoubtedly , McAboy stressed the point that the officers , especially
Kimble and Perkins, refused to issue him a referral because they were afraid of the
coming election.
Kimble and Lang testified they declined to refer McAboy to the job simply because
they had received no request from the Company Perkins believed McAboy spoke to
him once about work and he gave him a stock reply, he would give him a job. Both
Kimble and Perkins denied they discussed union politics with McAbov
Boykin and Cieutat testified they never requested the local to refer McAboy to the
job and there is no indication at all that Mattox made any such request.
Here, unlike most cases of this type , there is no evidence of hostility toward
McAboy by representatives of the Company or Local 70 , or that the local was direct-
ing retaliatory measures against him . Indeed, all the testimony is to the contrary.
McAboy conceded he was on friendly terms with the officers of Local 70 , that he
had worked on a union job shortly before the events herein , and was a frequent visitor
to the hall. Similarly , Boykin considered McAboy a good worker and would have
recommended him for employment and Cieutat actually offered him a iob Accord-
ingly , I am convinced that McAhoy injected union politics or the comine election into
the case in order to supply some motive on the part of the local officials for their
actions, where none existed . Both Kimble and Perkins denied they discussed union
SUPERIOR ENGRAVING COMPANY 359
politics with McAboy and Kimble and Lang testified they declined to give him a re-
ferral because the Company did not ask them to do so. Boykin and Cieutat testi-
fied the Company did not request the local to refer McAboy. I accept the testimony
of Kimble, Perkins, Lang, Boykin, and Cieutat and find the local did not refuse to
issue a referral to McAboy by reason of union politics or the coming election, but
because the Company did not request the local to grant a referral to McAboy,
The General Counsel seems to attach some importance to the fact that Lang re-
ferred Tate to the job on May 12, and Boykin's testimony he overheard Griffin tele-
phone Lang to inquire if McAboy was in good standing. It is true Lang could not
recall the details of Tate's referral but I see nothing unusual in his inability to do so.
Nor does Boykin's testimony have any bearing on the events of May 12, for he fixed
the date of the conversation as sometime in June. It is also clear that Tate reported
to and worked for Swanson, not Cieutat.
On all the evidence I find the Company did not condition McAboy's employment
upon his securing a referral from Local 70, and Local 70 and its agents did not dis-
criminatorily refuse to issue a referral to McAboy. Therefore, the Respondents have
not engaged in unfair labor practices as alleged in the complaints.
Upon the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent Company occur in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Local 70 is a labor organization within the meaning of Section
2(5) of the Act and the individuals named as Respondents are agents of Local 70
within the meaning of Section 8(b) of the Act.
3. The Respondent Company has not engaged in unfair labor practices as alleged
in the complaint within the meaning of Section 8(a) (1) and (3) of the Act.
4. The Respondent Local 70 and its agents have not engaged in unfair labor
practices as alleged in the complaint within the meaning of Section 8(b) (1) (A) and
(2) of the Act.
[Recommendations omitted from publication.]
Superior Engraving Company and Chicago Photo-Engravers'
Union No. 5, International Photo-Engravers' Union of North
America, AFL-CIO. Case No. 13-CA-4020. November 17, 1961
DECISION AND ORDER
On July 27, 1961, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report 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-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
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 briefs, and the entire record in
134 NLRB No. 44.