Local Union No. 41, Sheet Metal Workers' Assn., Etc.

National Labor Relations Board - Board Decisions

Apr 4, 1962

136 N.L.R.B. 787 (N.L.R.B. 1962)

LOCAL UNION 41, SHEET METAL WORKERS' ASSN., ETC. 787
undermines, union strength" he may erode that strength and relieve
himself of his duty to bargain.'
In the case before us the employer has bargained with the certified
union for only 6 months. It has, largely through its refusal to bar-
gain, taken from the Union a substantial part of the period when
Unions are generally at their greatest strength-the 1-year period
immediately following the certification. Thus to permit the Em-
ployer now to obtain an election would be to allow it to take ad-
vantage of its own failure to carry out its statutory obligation,
contrary to the very reasons for the establishment of the rule that a
certification requires bargaining for at least 1 year. We shall, there-
fore, in this and in future cases revealing similar inequities, grant the
Union a period of at least 1 year of actual bargaining from the date
of the settlement agreements
[The Board dismissed the petition.]
MEMBERS RODGERS and LEEDOM took no part in the consideration of
the above Decision and Order.
5 Ray Brooks v NLRB, supra, p 100
s To the extent that this Decision is inconsistent with The Daily Press Incorporated,
112 NLRB 1434, and similar cases, the latter are hereby overruled Since the Petitioner,
in the instant case has already bargained for 6 months with the Union, its obligation
to bargain continues for at least an additional 6 months from the resumption of
negotiations.
Local Union No. 41, Sheet Metal Workers' Association, AFL-
CIO, and its business agents , Roy Stringer and Joseph O'Neill
and Clyde Guinn and Sheet Metal , Air Conditioning and Roof-
ing Contractors ' Association of Central Indiana , Inc.; Iowa
Sheet Metal Contractors , Inc.; and Air Conditioning Engineer-
ing Company, Alloy Architectural Products Co., Brooks Steel
Erection , C & S Metal Equipment Co., Capitol Neon Sign Co.,
M. S. Churchman Co., Commercial Floor Covering & Acoustics
Co., General Sheet Metal Fabricators , McFerran-Kane Co.,
Inc., Skirvin Sheet Metal Co., Staley Sign Company, Taylor
Lumber & Supply Co., Town Equipment Company, Triad
Sheet Metal & Roofing Co., Clifford Van Osdol Co., Walters
Heating Co., Warfel Sheet Metal Co., Wells Sheet Metal Co.,
and Woodburn Roofing & Sheet Metal Co., Parties to the Con.
tract. Case No. 25-CB-333. April 4, 1962
DECISION AND ORDER
On July 12, 1960, Trial Examiner John F. Funke, issued his Inter-
mediate Report in the above-entitled proceeding, a copy of which is
136 NLRB No. 77.
641795-63-vol. 136-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached, finding that the Respondent Union, Local Union No. 41,
Sheet Metal Workers' Association, AFL-CIO, and its business agents,
Roy Stringer and Joseph O'Neill, had not engaged in any of the un-
fair labor practices alleged in the complaint and recommended that
the complaint be dismissed in its entirety. The General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Board i has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions:'
1. The General Counsel excepts to the Trial Examiner's finding,
based largely upon the credited testimony of Field Superintendent
Norman Burton, Foreman Max Grdolnik, and Business Agent Joseph
O'Neill, that Iowa Sheet Metal Contractors, Inc., herein referred to as
Iowa, refused to employ Clyde Guinn at the Fidelity project solely
because Guinn did not possess the qualifications needed at the job at
the time of his application. We find, contrary to the General Counsel's
exceptions, that the clear preponderance of all the relevant evidence
does not demonstrate that the Trial Examiner erred in crediting the
testimony of those witnesses 3 and accordingly adopt his credibility
rulings.
2. The Trial Examiner found that no discriminatory hiring prac-
tice existed between the Respondent and the Association and non-
Member contractors. We agree. The evidence presented by the Gen-
eral Counsel will not justify a conclusion that referral or clearance by
the Respondent was a precondition to obtaining a job with the con-
tractor. We therefore cannot conclude that the Respondents violated
Section 8 (b) (2) by maintaining and enforcing a discriminatory hiring
practice.
3. The Trial Examiner refused to find that a clause contained in an
appendix to the 1959-60 contract providing for the payment of a
travel expense allowance to "members" was violative of the Act. It
appears from the record that the Respondent Union had deleted the
word "member" wherever it had appeared in the earlier contract.
Business Agent Stringer testified that the use of the word "member"
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
power in connection with this case to a three -member panel [ Chairman McCulloch and
Members Leedom and Brown].
$ We do not adopt the Trial Examiner ' s comments with respect to the manner in which
the General Counsel's representatives tried the case, particularly his remarks casting re-
flections on their professional ethics. As we have said before, it is "not our policy . . .
to condone such unfounded remarks by a Trial Examiner In an Intermediate Report." See
The Ingalls Steel Construction Company, 126 NLRB 584, 585
$ Standard Dry Wall Products , Inc., 91 NLRB 544, 545 , enfd . 188 F. 2d 362 (CA 3).
LOCAL UNION 41, SHEET METAL WORKERS' ASSN., ETC. 789
in the appendix had been inadvertent and that the Respondent Union
had insisted that all "employees" receive the travel benefits. During
the course of the hearing counsel for the Respondent Union offered to
delete the word "member" from the clause and substitute therefor the
term "employee." This offer was not accepted by the General Counsel.
As the record thus shows that the term "member" was used inadvert-
ently, that it had not been discriminatorily enforced against nonmem-
bers, and that the Respondent Union has agreed to delete the term we
find it unnecessary to determine whether the travel allowance clause
was unlawful.4
4. The General Counsel contended after all testimony had been
taken and the record closed, that certain working rules of the Re-
spondent Union, which were incorporated into the 1958-59 contract
between the Respondent Union and the Association established closed-
shop conditions. The Trial Examiner found that this allegation was
not set forth in the complaint or litigated at the hearing and he there-
fore refused to find a violation of Section 8 (b) (2) of the Act.
We agree with the Trial Examiner that the General Counsel did not
properly allege that the contract and the working rules were in and
of themselves violative of the Act. The complaint is couched in terms
of the maintenance and enforcement of preferential hiring and layoff
conditions rather than in language reasonably susceptible to the inter-
pretation that the collective-bargaining agreements themselves estab-
lished closed-shop conditions. And at the hearing the General Counsel
did not adequately clarify his position although given an opportunity
to do so. Thus, although we have reservations concerning the working
rules, particularly rule 6, considerations of fairness constrain us to
dismiss this proceeding.5
[The Board dismissed the complaint.]
4 Sinclair Refining Company, 115 NLRB 380, 381
5 Consolidated Edison Co v. N.L.R.B , 305 U S. 197, 234-235, cf . N L R.B. v. MacKay
Radio d Telegraph Co , 304 U S. 333, 351
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner on April
18 and 19, 1960, at Indianapolis , Indiana.
The complaint, as amended at the hearing, alleged that Local Union No. 41, Sheet
Metal Workers' Association , AFL-CIO, herein called Local 41 or the Respondent
Union, and its business agents, Roy Stringer and Joseph O'Neill, violated Section
8(b)(1)(A) and (2 ) of the Act. It alleged that Local 41 and the Sheet Metal,
Air Conditioning and Roofing Contractors ' Association of Central Indiana, Inc.,
herein called the Association , and certain contractors who are nonmembers of the
Association, herein called the non-Members, entered into collective -bargaining
contracts and that pursuant to said contracts the Respondent Union , the Association
and the non-Members maintained and enforced preferential hiring and layoff con-
ditions by which the Association and non-Members were required to hire only em-
ployees referred by the Respondent Union and were required to lay off employees
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to their "paid-up" membership status in Respondent Union. It further
alleged that Iowa Sheet Metal Contractors, Inc., herein called Iowa, and Respondent
Joseph O'Neill, business representative of Local 41, orally agreed that Iowa would
be bound by the 1958-59 agreement between Local 41 and the Association. It then
further alleged that on or about November 19, 1958, Respondent Union attempted to
cause and did cause Iowa to refuse to hire Clyde Guinn, the Charging Party, be-
cause he was not referred nor cleared for employment with Iowa by the Respondent
Union. The amended complaint alleged that the contract between Local 41 and
the Association entered into in 1959 (the 1959-60 agreement) discriminated between
union members and non-Members in the payment of travel expense.
The answer, as amended, denied these allegations.
Respondent rested at the conclusion of the General Counsel's case and called
no witnesses. Respondent moved to dismiss the complaint on the ground that the
General Counsel had failed to prove a prima facie case. This motion was denied
on the ground that the Board, as the reviewing authority, did not favor dismissal
upon motion and upon the further ground that the Trial Examiner did not under-
stand the theory upon which the General Counsel predicated his prima facie case
nor the evidence relied upon to establish a violation of the Mountain Pacific rule,'
and therefore needed to study the transcript and the General Counsel's brief. Neither
did the Trial Examiner understand what evidence was relied upon to establish that
the travel expense clause in the 1959 contract was discriminatory.
Upon the entire record in this case and my observation of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
It was stipulated that the Association was an association of employers representing
its members in collective bargaining with Local 41 and that members of the Associa-
tion annually receive in excess of $50,000 worth of goods and materials from points
and places outside the State of Indiana.
It was stipulated that Iowa Sheet Metal Contractors, Inc., is an Iowa corporation
having its principal office and place of business at Des Moines, Iowa, and that during
the past 12 months Iowa shipped goods and/or performed services outside the State
of Iowa which goods and services were valued in excess of $50,000.
I find that the Association and Iowa are engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
Local Union No. 41, Sheet Metal Workers' Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The refusal to hire Guinn
At the time of hearing Clyde Guinn, the Charging Party and a journeyman
sheetmetal worker who had been a member of Local 41 for 7 or 8 years, was em-
ployed by Limbach Company at the State Office Building project in Indianapolis.
Guinn had been hired at the jobsite by Foreman Max Grdolnik, also a member of
Local 41, in October of 1959. After Grdolnik hired him he told Guinn to check
with Business Agent O'Neill at the union hall. Guinn did report to O'Neill and
was put to work the next day.2 He was told to report to O'Neill so that his name
'Mountain Pacific Chapter, et al., 119 NLRB 883, remanded 270 F 2d 425 (C.A. 9).
Since so-called Mountain Pacific cases are referred to the office of the General Counsel
before authority to issue complaint is granted the Regional Director, the Trial Examiner
assumed that the General Counsel had a theory which raised a triable issue
2A major Issue In this case is whether or not the Respondent Union was given ex-
clusive hiring privileges by the Association and the non-Members The General Counsel
claimed that employment with Association and non-Member contractors was conditioned
on referral or clearance by Respondent Union. This claim he sought to support by evi-
dence that journeymen employed directly by the contractors at the jobsite were told to
report their hiring to O'Neill.
LOCAL UNION 41, SHEET METAL WORKERS' ASSN., ETC. 791
would be taken off the "loafing list" (the list of members who were unemployed)
and O'Neil would know where he was working.3
The allegation of discriminatory refusal to hire Guinn stems from his application
for employment at the Fidelity Bank Building project in Indianapolis. Iowa was
the subcontractor at that job and its first field superintendent at the project was
Norman Burton. Its first foreman was Grdolnik (the same Grdolnik who hired
Guinn at the State Office Building project). Iowa commenced work at Fidelity in
the late summer or early fall of 1958. In November of 1958 Guinn, then unem-
ployed, went to the Fidelity jobsite to see a friend, Joseph Rogers, employed by
Iowa as a sheet metal worker on the project. According to Guinn's testimony,
Rogers told Field Superintendent Burton that Guinn was a good man and was look-
ing for work. Burton gave Guinn an application form to fill out and told him to
check the classifications of sheetmetal work he was capable of performing. Guinn
checked welding, fieldman, and blueprint reading.4 Guinn asked Burton if he was
going to hire any more men and was told four more men would be hired in the
future. He made the usual request that Burton call him and let him know when
the men would be hired and received the usual promise. Burton did not inquire of
his union membership nor did he tell Guinn that referral was necessary. Not hearing
from Burton, Guinn went back to the jobsite on or about November 20 (Guinn
stated it was either on a Tuesday or a Wednesday), saw Burton and was told that
he (Burton) would hire four men on Thursday. Guinn asked Burton if he would
request him by name when he called the hall and testified he was assured that he
would be requested by name. Guinn then went to the hall on Wednesday afternoon
since he expected that Burton would put in the call for men to work Thursday at
that time. He did not hear of any call nor was any man sent out from the hall
while he was there. He went to the hall the next morning at 8 o'clock and again
there was no call from Burton so he went to the jobsite. There Rogers told him
four men 5 had been put to work that morning so Guinn asked Burton why he had
not called for him and was told by Burton that he had had a conversation with
O'Neill the day before and O'Neill has asked him not to request men by name.
Three or four days later Guinn asked O'Neill why he had not been sent and O'Neill
told him Iowa had requested the four men who had been sent. Guinn told O'Neill
he thought that was a "damn lie" and O'Neill replied that he would not argue further.
This is the sum of Guinn's testimony to support his charge that Respondent Union
caused and attempted to cause Iowa to refuse to hire him.
Patently there is an absence of any motive which would cause Respondent Union
to request Iowa to discriminate against Guinn, since Guinn was admittedly a member
in good standing at the time. To establish such motive the General Counsel offered
the testimony of Guinn with respect to his employment at Bloomington, Indiana.
Guinn was employed on construction work there by Sink and Edwards, contractors,
until October 15, 1958.6 While he was employed on the Bloomington Job Guinn,
who was dissatisfied because he was not receiving mileage in accordance with the
Association-Local 41 contract, complained to Business Agent Stringer, named as
a Respondent herein. Guinn received no satisfaction from Stringer but he met him
again at the union hall a few days after termination of the Bloomington project and
again voiced his complaint that he had failed to receive mileage. Although Guinn
did not testify to what Stringer said he apparently again received no satisfaction.
Later a special meeting of Local 41 was called to discuss the mileage issue since
8 That this was the purpose is made clear from the testimony of Guinn himself:
Q. (By the TRIAL EXAMINER) Did he (Grdolnik) mean for you to go down to
tell O'Neill you were no longer on the loafing list? What did he mean, check with
O'Neill down there?
A. Well, it's normal procedure to notify the union that you got a job.
Q. You went to the union hall and notified O'Neill that you had the job"
A I notified Mr O'Neill, yes
Q. That you had been employed? [The emphasis is supplied but the Trial
Examiner underscored the tense in the questioning.]
A Yes, sir.
4 On cross-examination Guinn admitted that he was generally known as a welder among
the business agents and the foreman
5 These were Longworth, Struby, and Wiley (the fourth was not known to Guinn),
all were members of Local 41.
"The complaint herein named Sink and Edwards as members of the Association.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other members of Local 41 had been employed by Sink and Edwards at Blooming-
ton. When this meeting failed to produce any action on the part of Local 41, Guinn
requested a meeting with the executive board. According to Guinn, he was told
by the Board that there was nothing he could do and "they flatly refused to do
anything about it." Guinn then told the Board that he would file a civil suit against
Sink and Edwards to get the money, to which Stringer responded that if he did he
would be blackballed by every contractor in the jurisdiction of Local 41. He was
also told that he could not expect any help from the Union because he was "trying
to tear it down." It is from this dispute with Local 41 and with Stringer that a
subsequent discriminatory motive is to be inferred, resulting in a refusal to clear
him for employment at Fidelity.
Other witnesses were called by the General Counsel in his diligent efforts to estab•
lish that Respondent Union caused Iowa to discriminate against Guinn
Norman Burton, field superintendent for Iowa at the Fidelity project in November
1958, was first called. Burton, however, was not asked by the General Counsel
why he did not hire Guinn and there is no testimony that his failure to hire Guinn
was due to any request made by Respondent Union or by Stringer or O'Neill. Burton
testified, credibly, that Guinn applied for work at the jobsite in November, was given
an application form, and that Guinn asked him to call the union hall when he needed
men. But Burton's testimony does not establish that he agreed to call the union hall
and ask for Guinn by name, it only establishes that he agreed to call the hall and ask
for a certain number of men. On cross-examination Burton testified that Guinn's
application card showed that he was qualified for welding, rigging, and blueprint
reading. Burton, new to the Indianapolis area, relied on Grdolnik's estimate of
applicants and testified that Grdolnik told him that Guinn was a welder. In Novem-
ber Burton had no need for a welder and, questioned by the Trial Examiner, testified
that the reason Guinn was not hired was that Grdolnik told him there were better
mechanics available than Guinn. Burton's testimony, uncontradicted, is fully credited.
Foreman Max Grdolnik was called by the General Counsel. Grdolnik, whose
recommendations as to hiring were necessarily given great weight by Burton was
not questioned by the General Counsel as to the reasons Guinn was not employed.
On cross-examination, however, Grdolmk testified that he knew Guinn as a welder
and that there was no full-time welding job available at Fidelity when Guinn applied.
He testified that he did the hiring while he was foreman at Fidelity; that he did not
discriminate against Guinn (there is nothing to indicate Grdolnik knew of Guinn's
dispute with Local 41); that no agent of Local 41 told him not to hire Guinn; and
that he later hired Guinn at the State Office Building job (the Limbach job) when
Guinn applied for work there.? Like Burton, Guinn was a credible witness, his testi-
mony is uncontradicted, and it is credited in full. I therefore find that Grdolnik did
not hire Guinn because he did not need a welder and for no other reason.
Business Agent Joseph O'Neill, named an individual Respondent herein, was called
by the General Counsel. Significantly, O'Neill was not asked by the General Counsel
if he knew why Guinn was not given employment at Iowa. O'Neill did testify that
he recalled that Guinn inquired for work at the union hall after the termination of
work at Bloomington. On cross-examination he testified that he did not attempt
to dictate to the foreman at Iowa which men should be employed He testified that
he did not know why Guinn was not employed at Fidelity but that he did not cause
Iowa to discriminate against Guinn. This testimony is credited.
This concludes the relevant testimony as to the failure to employ Guinn on the
Iowa job. On the basis of the credited and uncontradicted testimony of the General
Counsel's own witnesses I can make no other finding than that Respondent Union
neither caused nor attempted to cause Iowa to refuse employment to Guinn because
he was neither cleared nor referred for employment by Respondent Union. I find
that Guinn was refused employment at the Fidelity project by Iowa solely because
his qualifications were not among those needed at the job at the time of application.
2. The hiring practice
The General Counsel alleged that a hiring practice or arrangement existed between
Local 41 and the Association and non-Member contractors which required the Asso-
ciation and the non-Members to hire only those sheetmetal workers who were
referred or sponsored by the Respondent Union and that this requirement of referral
or sponsorship established an exclusive hiring hall which operated without the safe-
guards required by the Board's Mountain Pacific decision, supra. General Counsel
7 Grdolnik testified that when Guinn first applied for work at Limbach he told Guinn
that he did not need a welder but Guinn told him he had not been on welding for some
time. When a job was available he hired Guinn.
LOCAL UNION 41, SHEET METAL WORKERS' ASSN., ETC. 793
further alleged that the contracts between Local 41 and the Association established a
practice under which employees were required to be laid off according to their paid-up
membership status in Respondent Union.
When Iowa started employing sheetmetal workers at Fidelity it received and
adopted the contract between Local 41 and the Association .8 This contract specifi-
cally provided that the members of Local 41 had the right to solicit jobs from local
contractors.9 The contract nowhere provided that only union members should be
hired or that only union members referred by the union should be hired.1°
Since the contract itself is not alleged to provide for an unlawful hiring arrangement
the General Counsel is required to prove an unlawful practice. He first called
Field Superintendent Norman Burton, previously found to be a credible witness.
Burton, in charge at Fidelity when the first sheetmetal workers were hired, testified
that he at that time had a conversation with Business Agent O'Neill and told O'Neill
he would need three men right away. Since Iowa was a stranger in Indianapolis it
followed the usual practice of seeking skilled craftsmen from the union of the particu-
lar craft. O'Neill agreed to supply the men and also supplied Grdolmk, the first
sheetmetal foreman Thereafter Burton hired through Grdolnik and the successive
foremen, all of whom were members of Local 41. The foremen hired men at the
jobsite and also by calling the hall. The only request made by O'Neill to Burton
was that Burton request a certain number of men and not request men by name, a
procedure which left the selection of the individuals to O'Neill and which avoided
the discontent which arose when men were requested by name were hired who had not
been on the loafing list as long as other members. There is no testimony or other
evidence that when men were hired through the ball O'Neill selected men on any
basis of discrimination. The hiring at the jobsite followed the procedure applied
to Guinn The applicants filled out their forms, setting forth their special qualifica-
tions, and Burton then consulted with his foremen, who knew the men, before
hiring them. As to those who were hired at the jobsite, Burton or the foremen would
tell them to report their employment to their union business agent as required by the
contract. Since the purpose of this reporting was, as this record establishes, to
keep the Union's loafing list and its records of employment current no discrimination
can be found. The testimony of Grdolnik supports that of Burton and the testimony
of neither is contradicted li Another foreman employed by Iowa at Fidelity was
called by the General Counsel. Ray McCollister testified that he first asked O'Neill
for a job with Iowa (as journeyman) in September of 1958. He was not sent to
Iowa by O'Neill at this time (the reason is not clear) but subsequently he and another
journeyman were sent to Iowa by O'Neill and were hired by Iowa. McCollister
had not applied at the jobsite nor was he told that he had to be referred by O'Neill-
he was on the loafing list and sent to Iowa when a request for men came to the hall.
While McCollister was working at Fidelity and before he became a foreman he sug-
gested to Burton that he (Burton) hire a journeyman named Ted Wells. Burton
complied with this request and Wells was hired. McCollister testified that after he
became foreman he would call O'Neill when he needed men and that this was pur-
suant to instructions he received from Slater, who succeeded Burton as field superin-
tendent. McCollister then testified to his hiring experience prior to employment at
Fidelity. In September 1958, he and Ted Wells applied for work at Triangle-Leahy
at Bloomington, Indiana Pate, Triangle's hiring foreman, asked them if they had
been sent out by Local 41 to replace two journeymen who had quit They told Pate
they had not been sent by Local 41, but Pate told them that if Local 41 had not
already sent two men he would hire them. McCollister then called the hall and
found that no men were on their way and he and Wells were hired.12 McCollister
8 General Counsel's Exhibit No 3.
8 Article IV, section 2:
All men are to notify the business representative of any change of their employment.
All members have the privilege to solicit their jobs from local contractors
1OApart from the amended complaint alleging discrimination with respect to travel
time, no allegation that the contract itself was discriminatory was made until Respond-
ents had rested
"According to Grdolnik, the General Counsel's witness, the practice of soliciting work
at the jobsite was common in the jurisdiction of Local 41 and was not in violation of any
union rule . As he testified, "They (the sheetmetal workers) go and solicit any place they
want to" (See, however, testimony of Welk, infra, footnote 13 )
12 Although McCollister testified that he asked the Union's secretary if it was all right
to take the job there is no evidence that Pate required such assurance or asked him to get
clearance from the Union . This was a purely voluntary act on McCollister' s part, but not
unnatural for a member of the Union.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also testified that while he was employed on this job a journeyman from Louisville
was hired without clearance or referral from Local 41. (O'Neill requested that this
employee transfer his membership card, which the employee agreed to do.)
Theodore Wells corroborated McCollister's testimony that he had been hired
at the hall when Burton requested him by name when he was on the loafing list
and also testified that most of the sheetmetal workers at Fidelity had solicited their
jobs at the jobsite.I3
Frank Pate, a field superintendent for Triangle-Leahy,14 was called to testify to
the hiring practice of that firm at the University of Indiana construction project at
Bloomington . He testified that the first three men hired a that job were hired by
him without any referral from or notice to Local 41. Two of these men he simply
transferred from a Westinghouse job he had just completed and the other was
a regular employee of Triangle-Leahy. As he needed more men he hired them
by calling Local 41, the only place he knew to get experienced journeymen.15 Ques-
tioned as to the hiring practice on the Westinghouse job at Bloomington, Pate testified
that he had hired two nonunion men, one of whom was a former union member who
had dropped his card and operated a shop of his own. No objection was made by
Local 41 to the hire of these men. Pate, on cross-examination, testified that he had
five men presently employed at a gymnasium construction job at Bloomington and
that none of them were hired through the union hall and that three of them were
hired at the jobsite without the knowledge of any business agent of Local 41.
This summarizes the testimony offered by the General Counsel to prove that
an illegal hiring practice had been established by agreement between the Association
and Local 41.16 Not a single witness called by the General Counsel testified that
he had ever been required to clear through the Union before being employed.17 Not
a single witness testified that either referral or sponsorship by the Respondent Union
had been required by contractors who were not members but who accepted either
the 1958-59 or the 1959-60 contracts as terms of employment.
I find, again on the basis of the testimony of the General Counsels own witnesses,
that neither referral nor clearance by the Respondent Union was required under either
the 1958-59 or the 1959-60 contracts or any arrangement or practice thereunder.
The only requirement which I find was made was that at Iowa employees who were
hired at the jobsite were advised to call the union hall to notify the business agents
that they were no longer on the loafing list and to advise them where they were
employed.
>s Wells testified that Grdolnik told him it was against the rules for members to solicit
out-of-State contractors at the jobsite but on cross-examination testified that most of the
men were soliciting their own jobs at the site (Fidelity).
14 Named in the complaint as "Triangle-Leary Plumbing & Heating Corp.," a member of
the Association.
ss Pate's testimony:
Q. (By Mr. LANSER) Have you received any instructions'
By TRIAL EXAMINER:
As to how you were to hire men at Bloomington at the tower job)
A. No. How we come to do that [call the hall] Is due to the fact that in our
contract [sheetmetal subcontract] specifications it says that we will hire experienced
men only for the type of work we do, and there is just no place to find experienced
men except the hall ; so therefore if I need men and there is none available I call
the ball. It's the only source of experienced men on that type of construction work
that I know of.
Q. You are not going around looking for inexperienced men"
A. Well, we are not supposed to hire them to begin with.
The brief of the General Counsel makes no reference to Pate's reasons for hiring through
the union hall nor to the fact that Pate did hire nonunion men without clearance through
the ball.
16 Clarence Dillehay, Jessie Smith, Mike Pappas, and Louie Gifford were called by the
General Counsel and testified that they had been employed at the Fidelity project. All
testified that they had been on the loafing list and had been sent to the Fidelity job by
O'Neill, presumably when Iowa had requested men. Edward O'Brien testified that he had
been employed by Iowa at the jobsite and had been requested to inform the union ball he
had been employed.
17 Jessie Smith, after vigorous prompting, testified that Burton told him he had "to
clear me through the Hall." Since Smith had first testified that he was not sure of the
words used by Burton I do not credit this statement.
LOCAL UNION 41, SHEET METAL WORKERS' ASSN., ETC . 795
The complaint also alleged a discriminatory practice with respect to layoffs. Rule
14 of the Working Rules of Local 41, referred to in the 1958-59 contract, reads:
A foreman shall give due consideration to qualified paid-up members when
laying off men. Every consideration shall be given to all stewards of Local #41.
No testimony was offered nor has any claim been made that an employee suffered
discrimination by reason of rule 14, nor is there any evidence that employees were
laid off according to their paid-up membership status. The clause is ambiguous
on its face since no indication of what is meant by "consideration" appears in the
text. In the face of this paten ambiguity some evidence that the discrimination in
the layoff procedure is required, evidence concededly lacking.
3. The travel expense clause
The Trial Examiner granted General Counsel's motion to amend the complaint
at the hearing to allege that the clause of the 1959-60 agreement between Local 41
and the Association was discriminatory.18 This clause reads as follows:
JOB SITE HIRING
Any member, when hired on the job site who lives within five (5) radius miles
of the job site, will not receive any expenses. If the member lives beyond five
(5) radius miles, he shall receive ten (100) cents per mile for each mile beyond
the five mile radius. For example, if a member lives twelve (12) miles from
the job site, he would receive expenses for seven (7) miles, or one dollar and
forty cents ($1.40) per day. For shift work, if started before 7:00 p.m. each
member shall receive eight (8) hours pay at the minimum rate of wages speci-
fied in Section One (1) of Article VIII of the Standard Form of Agreement for
seven (7) hours work. If the shift work is started at 7:00 p.m., or after, each
member shall receive eight (8) hours pay for six (6) hours work.
No evidence or testimony was offered that this clause was ever made effective or
that any discrimination between members and nonmembers was practiced by the
Association.19 The General Counsel contended, however, that the word "employee"
should be substituted for the word "member" to remove any discriminatory inference
which might be drawn. Counsel for the Respondent Union stated that it had and
would agree to the substitution which the General Counsel requested but the General
Counsel, for reasons not made known, did not accept the offer.
B. Conclusions
This record contains no evidence to support the allegation that the allegation
that the Respondent Union or its agents, Stringer and O'Neill, caused or attempted
to cause Iowa to refuse to hire Guinn because he was neither referred nor cleared
for employment by the Respondent Union 20 I have found that the only reason
Iowa did not employ Guinn was its belief that Guinn was primarily a welder and
that it had no need for a welder when he applied for employment. As to his other
qualifications, Iowa had no reason to doubt Grdolnik's statement that better mechan-
ics were available. There is no evidence that Grdolnik was motivated by discrimina-
11 This motion to amend was admittedly a belated one since, as counsel for Respondent
Union pointed out, the contract had been in the possession of the General Counsel almost
from the inception of the case Since the Respondent could not plead surprise as to the
provisions of a contract to which it was signatory, the motion was granted, although
not without some question as to why this issue was not properly pleaded in the first
instance.
19I credit the testimony of Business Agent Stringer that the Union insisted that every
employee receive the travel benefits and that the use of the word "member" instead of
the intended word "employee" was inadvertent
20 Counsel for the General Counsel has gone to unusual lengths to establish discrimina-
tion. He contends in his brief that O'Neill admitted that his statement to Guinn (that
four men had been requested by Burton by name) was "a damn lie." O'Neill made no
such admission. He did tell Guinn he would not argue further and he was under no com-
pulsion to continue so obviously futile an argument. What Guinn told O'Neill was that
he thought O'Neill's statement was "a damn lie," an allegation impossible for O'Neill to
deny since he could hardly be said to be privy to Guinn's thinking. Wigmore on Evidence
has been misconstrued
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion nor that he was acting in collusion with Stringer and O'Neill. I shall therefore
recommend dismissal of the allegations in paragraph 8 of the complaint.
The complaint herein alleged an unlawful hiring and layoff practice. Neither the
1958-59 nor the 1959-60 contracts provided, on their face, for any unlawful hiring
practice either by way of exclusive hiring privileges or by a necessity for referral
or clearance. Neither contract provided, on its face, for any discrimination in lay-
offs. No evidence was offered that the Association or the non-Members, including
Iowa, agreed to hire exclusively through Respondent Union or required referral from
Respondent Union as a condition of employment. The credible testimony in this
case, including the testimony of Guinn himself, is that members and nonmembers
were hired at the jobsite without referral by both local and out-of-State contractors.
Similarly there is no evidence that Respondent Union caused any employer to lay off
employees according to their paid-up membership in the Union. Rule 14, relied
upon by the General Counsel to prove a discriminatory practice, is not discrimina-
tory per se and no evidence of discrimination pursuant to the rule was offered. I
shall recommend that the allegations in paragraph 6 of the complaint be dismissed,
both as to unlawful hiring and layoff practices.
The complaint was amended to allege that the "jobsite hiring" clause discriminated
between members and nonmembers in the payment of mileage fees. Admittedly
the word "members" had been used inadvertently of "employees" in the contract.
No evidence of discrimination in practice was offered., The only testimony as to
practice was the credited testimony of Stringer that he insisted upon payment of
mileage to all employees. I am unwilling to find a violation of the Act solely upon
the inadvertent selection of language and in the face of testimony that the clause
was effectuated as it was intended to be drafted-without discrimination. The
rejection by the General Counsel of Respondent Union's offer to clear this latent
ambiguity by stipulated correction indicates only that the General Counsel was more
interested in proving a violation of the Act than in achieving compliance with it.
I shall recommend that paragraph 9-a of the amended complaint be dismissed?i
The foregoing are the only allegations of violations set forth in the complaint as
amended. The General Counsel, nevertheless, urges in his brief that findings of
violations be made by the Trial Examiner based upon matters not alleged in the
complaint nor litigated at the hearing. It was not until all the testimony had been
taken and the record closed that the General Counsel alleged that article IV, sec-
tions 6, 7, and 10 and rule 6 of the Working Rules constituted violations of the
Act and established a closed-shop contract. Nowhere in the complaint herein is any
mention made of article IV, sections 6, 7, and 10 or of rule 6 of the Working Rules;
nowhere is it alleged that the contract incorporated the Working Rules and that this
incorporation served to establish closed-shop conditions 22 The propriety of the
General Counsel's conduct in advancing posthearing allegations is seriously ques-
tioned for I do not agree that attorneys for the Government are not bound by the
same code of ethics which apply to other members of the bar. I therefore reject
in toto all the allegations in General Counsel's brief which refer to provisions of
the contract and the Working Rules which were not alleged as violations in the
complaint 23 The only issues pleaded and litigated were those on which I have
already ruled, i.e., the hiring and layoff practice and arrangement; the failure of
Iowa to hire Guinn; and the "jobsite hiring" clause which provided for travel
expense.
-See Argo Steel Construction Company, 122 NLRB 1077, where the Board (Member
Bean dissenting) found the travel clause discriminatory, not on its face, but on the
ground that the clause brought home to employees the monetary value of securing re-
ferral through the Union and thereby reenforced the unlawful closed-shop conditions of
the contract. The conditions which supported the Board's finding in Argo did not exist
in the instant case
z Prior to the opening of the hearing and in the presence of counsel for both parties
the Trial Examiner remarked that the pleadings indicated that only the hiring practice
was attacked and that the contract itself was not under attack Counsel for the General
Counsel agreed that this was the theory of the case Again, and on the record, the Trial
Examiner asked if this was not a Mountain Pacific case, i.e., a case in which the exclusive
hiring practice was attacked, and he was assured that it was
23 Section 5 of the Administrative Procedure Act provides:
In every case of adjudication required by the statute to be determined on the record
after opportunity for any agency hearing . (a) Persons entitled to notice of an
agency hearing shall be timely informed of . . . (3) the matters of fact and law
asserted.
See N.L.R.B. v. E. & V. Brewing Company, Inc, 276 F. 2d 594 (C.A. 6).
THE MAY COMPANY 797
Misstatements of fact are contained in the brief of the General Counsel.
(1) Rule 14 of the Working Rules does not cause the Association to lay off
employees "according to their paid-up membership." Rule 14 only requires that a
foreman who is a member of Local 41 shall "give consideration to qualified paid-up
members when laying off men." The clause as written is ambiguous, as cited in the
brief it is discriminatory.
(2) Neither article IV, section 7, nor any provision of the Working Rules requires
that foremen shall automatically be ruled off the job if they hire employees other than
members in good standing in the Union. This allegation is unsupported by any
provision in the contract or the Working Rules.
(3) O'Neill did not testify that the Union selected a man from the Local to act
as foreman so he would know how to select men for hiring and layoff. O'Neill testi-
fied that he suggested a foreman to Iowa, an out-of-State contractor, but that he did
not designate foremen and did not tell foremen whom to lay off.
(4) Nothing in the Working Rules requires the foremen to hire only members
in good standing and the record contains uncontradicted testimony that employees
who were not members of Local 41 were hired by parties to the contract.
(5) There is nothing in this record to support the allegation that Iowa had need
for Guinn and would have hired him except for the referral requirement.
I find a sorry contrast between the conduct of the General Counsel in this case
and the full and complete disclosure of all information requested which the record
reveals was made by the Respondent Union during the investigation, the voluntary
submission of full affidavits by Business- Agents Stringer and O'Neill to agents of
the Board, and the free and forthright testimony given by Stringer and O'Neill at
the hearing.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
2. Respondents Roy Stringer and Joseph O'Neill are agents of Respondent Union.
3. Sheet Metal, Air Conditioning and Roofing Contractors' Association of Central
Indiana, Inc., and Iowa Sheet Metal Contractors, Inc., are employers within the
meaning of Section 2(2) of the Act.
4. Respondents have not engaged in unfair labor practices within the meaning
of Section 8(b) (1) (A) and (2) of the Act.
RECOMMENDATIONS
It is hereby recommended that the complaint herein be dismissed in its entirety.
The May Department Stores Company d/b/a The May Company
and Retail Store Employees Union, Local 880, AFL-CIO,
Charging Party
The May Department Stores Company d/b/a The May Company
and Retail Store Employees Union, Local 880, AFL-CIO and
Office Employees International Union , Local 17, AFL-CIO,
Joint Petitioners. Cases Nos. 8-CA-2155 and 8-RC-3788. April
4, 1962
DECISION AND ORDER
On November 30, 1960, Trial Examiner James T. Rasbury issued
his Consolidated Intermediate Report in the above-entitled proceeding
finding that the Respondent had not engaged in the unfair labor
practices as alleged, recommending that the complaint be dismissed in
its entirety and that the Board overrule the Joint Petitioners' objec-
136 NLRB No. 71.