Ohio Valley Carpenters' District Council, Etc.

National Labor Relations Board - Board Decisions

Jun 12, 1961

131 N.L.R.B. 1130 (N.L.R.B. 1961)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been selected to be laid off on a discriminatory basis. Respondent fully and
amply met this burden . Respondent 's management assigned plausible and reason-
able grounds for the selection of each of those who were laid off between April 25
and June 8 . The factual basis for the selections as given by Respondent 's witnesses
were largely, if not entirely, uncontradicted . The Trial Examiner cannot conceive
of any reason, since Weber and Israel impressed him as being credible witnesses,
why he should reject the reasons asserted for the layoffs. Under the circumstances,
the Trial Examiner recommends that the allegations of the complaint , as amended,
with respect to the April 25 to June 8 layoffs be dismissed.
Upon the record as a whole, the Trial Examiner finds that the allegations of the
complaint, as amended , that Respondent had engaged in certain acts and conduct
violative of Section 8(a)(1) and ( 3) of the Act, are not supported by substantial
evidence . Accordingly, the Trial Examiner recommends that the allegations of the
complaint, as amended , that Respondent violated Section 8 ( a)(1) and ( 3) of the
Act, be dismissed.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Lew Chevrolet Company, Billings, Montana, is engaged in, and during all
times material herein was engaged in, commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Machinists Lodge No. 622 is a labor organization
within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint, as amended, that Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
and (3 ) of the Act, have not been sustained by substantial evidence.
[Recommendations omitted from publication.]
Ohio Valley Carpenters ' District Council, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO and Vencil
Pruitt and E. M. Redington Co., D. W. Winkelman Co., Inc.,
Maxon Construction Co., Inc. and Gateway Erectors, Inc.,
Parties to the Contract
Local Union No. 1477, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and Vencil Pruitt and E. M.
Redington Co., D. W. Winkelman Co., Inc., Maxon Construc-
tion Co., Inc. and Gateway Erectors , Inc., Parties to the Con-
tract. Cases Nos. 9-CB-601 and 9-CB-602. June 12, 1961
DECISION AND ORDER
On July 28, 1960, Trial Examiner James T. Rasbury issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in and were not engaging in the unfair
labor practices alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondents filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
131 NLRB No. 139.
OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 1131
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the Trial Examiner's findings,' conclu-
sions, and recommendations.
[The Board dismissed the complaint.]
1 Smithers , the business agent of Local 1477, told Marx, an applicant for employment
in the area and a member of a neighboring local, that if Pruitt , the Charging Party
herein , and Fraley , another employee , did clear in, he would see to It that they would
not get jobs The Trial Examiner found that this was merely an inaccurate prediction
We do not agree We find this statement coercive and violative of Section 8(b) (1) (A),
but it is the only violation found, and we believe it too isolated to warrant the issuance
of a cease-and-desist order here Cf. International Ladies Garment Workers Union,
AFL-CIO ( Twin -Kee Manufacturing Co , Inc ), 130 NLRB 614, Phillips Control Corp ,
129 NLRB 1485
INTERMEDIATE REPORT AND RECOMMENDATION
STATEMENT OF THE CASE
On the basis of information furnished in the charges filed herein by Vencil Pruitt
on December 11, 1958, and the investigation which thereafter was made, the General
Counsel of the National Labor Relations Board by its Regional Director for the
Ninth Region, on October 30, 1959, caused a complaint and notice of hearing to be
issued under Section 10(b) of the National Labor Relations Act, as amended (61
Star. 136), hereinafter called the Act, alleging that the Ohio Valley Carpenters'
District Council, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, have at all times since on or about June 12, 1958, engaged in
unfair labor practices alleged to be violative of Section 8(b)(1)(A) and (2) of
the Act.
The Respondents filed timely answers to the complaint effectively denying vio-
lations of the Act as alleged while admitting certain other aspects of the complaint.
On the issues framed by the complaint and the answer, this case was heard by the
duly designated Trial Examiner at Cincinnati, Ohio, on April 4 and 5, 1960.1 At the
hearing all parties were afforded opportunity to call and examine witnesses, to cross-
examine, and otherwise to participate fully in the proceeding. Counsel for the
General Counsel and for the Respondent Unions have filed briefs herein.
Upon the record as -a whole and due consideration having been given thereto, and
after observing the witnesses at the hearing, this Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS NAMED AS PARTIES TO THE CONTRACT: E. M.
REDINGTON CO., D. W. WINKELMAN CO., INC., MAXON CONSTRUCTION CO., INC. AND
GATEWAY ERECTORS, INC.
E. M. Redington Co., hereinafter called Redington, is an Ohio corporation with its
principal office and place of business in Springfield, Ohio. D. W. Winkelman Co.,
1 These two cases originally came before the Trial Examiner as part of a consolidated
complaint which included Cases Nos. 9-CB-845, 9-CB-846, 9-CA-923, 9-CA-1922, and
9-CA-2053 involving the same Respondent Unions and the McGraw Construction Co, Inc
[131 NLRB 854]. The hearing on the latter-named cases was actually opened on
March 17, 1960, but the Trial Examiner sustained a motion to sever the two instant
cases from the former proceeding and no evidence was received concerning the facts of
these two cases on that date By agreement of all counsel the instant two cases were
placed on a calendar call to be heard immediately following the close of the former
proceeding
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., hereinafter called Winkelman, is a New York corporation with its principal
office and place of business in Syracuse, New York. Maxon Construction Co, Inc.,
hereinafter called Maxon, is an Ohio corporation with its principal office and place
of business in Dayton, Ohio. Gateway Erectors, Inc., hereinafter called Gateway,
is an Illinois corporation with its principal office and place of business in Chicago,
Illinois. Each of these companies is engaged in the general building and construction
business and during 1959, which is a representative period, each performed services
for and on behalf of the United States of America in the construction of a military
airbase, located near Wilmington, Ohio, either as a general contractor or as a sub-
contractor. The cost to the United States Government and the moneys paid to
these and other contractors exceeded several million dollars. The Respondent
Unions herein admit and I find that Redington, Winkelman, Maxon, and Gateway
are and have been employers engaged in commerce or in operations affecting com-
merce as defined in Section 2(6) and (7) of the Act, respectively.
II. THE LABOR ORGANIZATIONS INVOLVED
The Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and Local Union No. 1477, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, hereinafter respectively called the
Respondent Council and the Respondent Local or collectively the Respondent
Unions, are and each of them has been at all times material hereto a labor organi-
zation as defined in Section 2(5) of the Act.
III. STATEMENT OF THE CASE
A. The issues
The issues as framed by the complaint and answer herein as well as the statements
by counsel and the evidence presented at the hearing appear to this Trial Examiner
to be fourfold and are as follows. First: Was there an illegal exclusive hiring-hall
arrangement and/or practice whereby the employers named herein were required to
hire only carpenter employees on ,their jobs at the Wilmington Air Force Base who
were members of the Respondent Local and/or were referred or sponsored for such
employment by the Respondent Local and/or the Respondent Counsel. Second: Did
Guy Smithers, business agent of the Respondent Local, restrain and coerce Pruitt
and other employees in the exercise of their rights guaranteed in Section 7 of the
Act by his words and course of conduct as they sought employment with the em-
ployers named herein at the Wilmington Air Force Base. Third: Did Russell White,
business agent and sometimes acting secretary of the Respondent Council, restrain
and coerce Pruitt in the exercise of his rights guaranteed in Section 7 of the Act by
his course of conduct and words to Pruitt as Pruitt sought employment of the em-
ployers named herein at the Wilmington Air Force Base. Fourth: Did the Re-
spondent Unions, or either of them, cause or attempt to cause Winkelman, Redington,
Maxon, Gateway, and each of them since on or about November 4, 1958, to refuse
to hire Pruitt and other employees all in violation of the Act. Specifically the General
Counsel contends that the alleged illegal course of conduct and the arrangement or
practice was violative of Section 8(b)(1) (A) and (2) of the Act.
B. The organizational setup of the Respondent Council and Respondent Local
The Respondent Council was organized in conformity with the constitution of the
United Brotherhood of Carpenters and Joiners of America and is composed of 17
different locals affiliated with the United Brotherhood of Carpenters and Joiners of
America that are located in the general vicinity of Cincinnati, Ohio, and such adjoin-
ing counties as may have been determined in accordance with the International
Union's constitution and bylaws to be within said Council's territorial jurisdiction.
George Osterkamp is the elected secretary of the Respondent Council and is its
general administrative head. He is elected by ,the members of the various 17 local
unions that comprise the Respondent Council's membership. Respondent Local
has its own office -in Middletown, Ohio, and has been a member of the Respondent
Council since July 1, 1958. The 17 member locals elect a specified number of
delegates based on each Local's total membership and these elected delegates actually
comprise the Respondent Council and meet twice each month, the meeting dates
regularly being the second and last Friday of each month The constitution, bylaws,
and trade rules of the Respondent Council govern the conduct of the various union
members who are members of the 17 locals affiliated with the Respondent Council.
(See General Counsel's Exhibit No. 3.) There is evidence to indicate that while
Respondent Local joined the Respondent Council on July 1, 1958, they did not take
OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 1133
official action to suspend their own bylaws until December 7, 1959. However,
according to the testimony of Osterkamp he regarded the Respondent Local as
being governed by the constitution and bylaws of the Respondent Council from
the date of their official membership in the council. (See General Counsel's Ex-
hibit No. 2.)
The Respondent Council has three business agents, Russell White, Robert Sauer,
and Russell Austin, that generally negotiate contracts and handle the day-to-day busi-
ness routine for the member locals. Respondent Local has its own business agent
selected to perform these functions exclusively for said Respondent Local. Guy
Smithers was the business agent for the Respondent Local from June 1957 to June
1959, and was succeeded by Percy Craft who was the business agent for the Re-
spondent Local at the time the testimony was taken in this hearing. The Respondent
Council issues referrals and work permits to members of the Carpenters Brother-
hood who work within the territorial jurisdiction of the Respondent Council, but
since July 1959 referrals and work permits within the territorial jurisdiction of Re-
spondent Local have been handled directly by the office of said Respondent Local.
Work permits are a part of the dues structure of the labor organizations herein
involved and are issued to "brothers" who are employed as carpenters within the
territorial jurisdiction of the Respondent Council, when .the "brother" is not a mem-
ber of a council local. A member has the option of maintaining his membership in
his home local and paying for a work permit in the "foreign" jurisdiction, or if the
member desires he may transfer his membership from his home local to a local
covering the area within which he is working and thereafter he pays his dues to his
new home local.
The bylaws of Respondent Local (see General Counsel's Exhibit No. 2) and the
bylaws and trade rules of the Respondent Council (see General Counsel's Exhibit
No. 4) contain all of the usual limitations and confinements placed on members of
craft labor organizations. These endeavor by means of strict penalty, fines, and
even expulsion to prohibit all "brothers" from working on any job unless it is
strictly union in every detail. There is set forth in Appendix A, attached hereto, a
number of the more pertinent of the provisions taken from the exhibits received in
evidence herein, but it should suffice for purposes of this report to indicate that these
internal rules and regulations seek to create closed-shop conditions in the carpentry
industry. It should be borne in mind, however, that these closed-shop conditions
are attained by regulation of the members and not by language placed in labor-
management contracts negotiated by the labor organizations with employers.
C. Relationship between the Employers and the Respondent Unions
There was no evidence presented nor did the General Counsel contend that any
of the employer Companies named herein as Parties to the Contract had written
contractual agreements with the Respondent Unions. The employers named herein,
however, were generally familiar with and in some instances had copies in their files
of the labor-management contract generally applicable within the territorial juris-
diction of the Respondent Unions and other employers generally engaged in the
carpentry trade?
D. The Charging Party's case
Vencil Pruitt testified that he has been a carpenter for approximately 15 or 16
years and a member of the Carpenters Brotherhood since 1953. At the present time
he is a member of the Respondent Local having transferred his membership from
Local No. 2408 at Xenia, Ohio, in 1958, under circumstances which will be de-
scribed hereinafter and which partially gave rise to the instant case.
Pruitt testified that he sought employment with Winkelman on or about October
31, 1958, at which time he went to the Wilmington Air Force Base and there spoke to
a former acquaintance, Jim Williamson, a carpenter foreman for Winkelman. Ac-
cording to the testimony of Jim Williamson, which is undenied, he had no authority
to hire anyone, but could only recommend such employees as he might know to be
qualified carpenters . The superintendent did all of the hiring. According to Pruitt,
the following occurred:
He [Williamson ] said , "Well, ,now, the superintendent will be here , see him."
And he said "When you see him tell him you know me ." So when he came in,
the superintendent came in, I spoke to him and asked him about a job . He said,
2 See the testimony of Thomas H Byrd, superintendent for Redington ; Calvin G Billet,
vice president for Gateway ; Everett W . Brouse, project engineer for Winkelman ; and
Thomas P. Mattocks , auditor for Maxon.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Well, I don't know." I said, "Well, I know Jim Williamson and Jim told me
to speak to you." "Oh," he said, "alright, where's your book." And I said,
"It's up in 2408, that's in Xenia, Ohio."
Q. After the superintendent asked you where your book was and you said
you were a member of 2408, what else did he say and what else did you say?
A. Well he said there had been several fellows here wanting a job and they
had to go away and come back, couldn't get a permit. Not come back. He said
they go after the permit and never come back.
Well, I said, "I'll go down to the hall Monday and take my book down and
clear in down there." He said, "Well, right over there behind the yellow build-
ing," they were putting in a filter, he said, "go over there and tell Jim I said
put you on the time book."
Mr. WILSON: And what?
The WITNESS: Time book . I said , "Alright." I said , "I'll go to work Tues-
day." He said, "Why not Monday morning?" I said, "I'd get the clearance
card then I can go in Tuesday on my own." And he said, "Alright, go ahead.
When you get through the Local come back."
1. Monday, November 3, 1958
Pruitt obtained the necessary papers from his home Local, 2408 in Xenia, and
proceeded to the office of the Respondent Local in Middletown, Ohio, and talked to
Guy Smithers, the business agent. Smithers told him he could clear through the
District Council, but remarked to Pruitt "and some of the others that were clearing
in that he had a strike on and he couldn't send anybody out." Pruitt testified that
Smithers gave him a letter to George Osterkamp, the secretary of the Respondent
Council, but indicated to him that it probably "won't do you any good." Pruitt
related that he then proceeded to the office of the Respondent Council where he saw
Osterkamp and sought to obtain the necessary papers for clearance into Respondent
Local. Osterkamp inquired of Pruitt as to where he had obtained employment, but
Pruitt refused to tell him. The result of this session was a quarrel between Oster-
kamp and Pruitt and the refusal of Osterkamp to give Pruitt the necessary papers for
clearance into the Respondent Local. Immediately following this conversation,
Pruitt called the office of the International Brotherhood of Carpenters and Joiners of
America, at Indianapolis, Indiana, at which time he voiced his complaint concerning
the delay and/or refusal of Osterkamp to issue the necessary papers to obtain clear-
ance into the Respondent Local. Following the telephone conversation, Pruitt sent
a wire to the same general effect to the International Union. Pruitt then departed
and returned to the office of the Middletown Local and at their meeting that evening
he presented his book to the Local president for clearance. He was asked whether or
not he had obtained an O.K. slip from the Respondent Council, to which Pruitt
replied in the negative . Pruitt was unsuccessful in obtaining a clearance into the
Respondent Local that meeting and on the following day, November 4, returned to
the Winkelman jobsite. The following questions and answers were given by Pruitt on
direct examination.
2. Tuesday, November 4, 1958
Q. The next day was Tuesday, November 4. What did you do that day?
A. Tuesday morning I went back over to Winkelman Construction.
Q. Did you talk to any representative of Winkelman there?
A. I talked to the superintendent over there.
Q. That was the same superintendent you talked to before?
A. Yes.
Q. What did you say to him?
A. I told him they didn't accept my book and I wired a message into
Indianapolis and as soon as I got my book in I'd be ready to go to work.
[Emphasis supplied.]
Following this conversation with the superintendent of the Winkelman construc-
tion job , Pruitt related that he then contacted Guy Smithers by telephone and request-
ed a work permit . Smithers inquired as to where Pruitt had a job and when Pruitt
replied with the Winkelman construction company he was told by Smithers that he
would not issue a permit . According to Pruitt , he then told Smithers , "I don't give
a damn whether you do or not." Whereupon Pruitt hung up the telephone without
giving Smithers an opportunity for any further explanation as to why he would
not issue a permit.
Pruitt again called the International office of the Carpenters Brotherhood at
Indianapolis , Indiana , and explained to the president 's secretary that the business
OHIO VALLEY CARPENTERS ' DISTRICT COUNCIL, ETC. 1135
agent of Respondent Local had refused to issue him a permit and followed this
telephone conversation with a telegram to the International containing the same
general information.
3. Wednesday, November 5, 1958
The next day Pruitt went to the Winkelman job and there visited with his acquaint-
ance, Jim Williamson, but according to his own recollection did not talk to him
concerning going to work. There is no other evidence of contact with either of
the Respondents on Wednesday.
4. Thursday, November 6, 1958
Pruitt again went to the office of the Respondent Local at Middletown and took
with him two carpenters named Fraley and Marx. Marx was successful in obtaining
a work permit, but Pruitt was not as Smithers remarked to him that he (Pruitt) did
not have a job anyway. Pruitt then drove Fraley and Marx to the office of the
Respondent Council in Cincinnati, where Marx completed the process of obtaining
his work permit. According to Pruitt, he and Fraley did not ask for a work permit
at this time, but merely asked the secretary if she had had any calls for any men
to go out. Upon receiving a negative reply, they departed from the office. Again
Pruitt related that he returned to the Middletown office of the Respondent Local
and talked to Guy Smithers where he told him, "I'm going to work. You are going
to pay me for what time you are keeping me out of work." Smithers then replied,
"You fellows can't work."
Following this conversation Pruitt, accompanied by Fraley, drove to Indianapolis,
Indiana, and reached the general offices of the International Brotherhood on Friday
morning, November 7.
5. Friday, November 7, 1958
Pruitt related that he was unsuccessful in seeing either the International president,
M. A. Hutchinson, or J. R. Stevenson, whom he requested to see , but did speak to
Mr. Schuey. Schuey examined Pruitt's Brotherhood book and assured him that there
was nothing wrong with it and that according to the constitution and bylaws he was
entitled to have his book received by the Respondent Local. Schuey instructed Pruitt
to return to Middletown and assured him that there would be a message sent to the
Middletown Local which would clarify Pruitt's problem. Pruitt and Fraley returned
to Middletown and there Pruitt again talked to Smithers and was told that Smithers
had received the message from the International. Pruitt was again informed by
Smithers that he would have to obtain his work permit from the Respondent Council
and that although George Osterkamp was out of the city Russell White was taking
his place and would take care of the matter for him.
6. Monday, November 10, 1958
Pruitt did not go to Cincinnati until the following Monday. Pruitt saw Russell
White and was successful in obtaining an O.K. slip for clearance into the Respondent
Local, but was unsuccessful in obtaining a work permit.3 White suggested to Pruitt
that he return to Middletown and talk to Smithers again concerning a work permit.
According to Pruitt he was unsuccessful in reaching Smithers and proceeded to the
jobsite of Winkelman and there talked to the carpenter superintendent. Pruitt related
the following conversation which the Trial Examiner regards as significant. "I said
I'd go to work as soon as I could get a permit." Following some further conversa-
tion the superintendent suggested to Pruitt that he might try to obtain employment
with Maxon. Pruitt was unsuccessful with Maxon and from there proceeded to
Redington to seek employment.
Pruitt related that he spoke to Robert Hays, the carpenter foreman with the Red-
ington Company, and there was told that Guy Smithers had been there just ahead
of him and that he (Robert Hays) had requested two carpenters of Smithers and that
had Pruitt and Fraley been there earlier they might have been able to obtain a job.
8 The O.K. slip obtained by Pruitt to facilitate his clearance into the Respondent Local
contained a clerical error which both the Charging Party and the General Counsel sought
to indicate was a deliberate error intended to further delay Pruitt's efforts to obtain
clearance into the Respondent Local. The Trial Examiner does not accept the innuendoes
which the General Counsel and Charging Parties seek, but is of the opinion that the error
was an honest clerical mistake which Pruitt could have had corrected while at the Re-
spondent Council's office, but which he for some unexplained reason refused to call to
White's attention.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Pruitt, Hays told him that "Guy [ Smithers ] is sending me a couple of
men in the morning." Pruitt was told by Hays, "Come back in the morning. I'll
see what I can do for you." Following this answer , Pruitt was asked if anything
was said to him about a permit and Pruitt gave the following answer which the
Trial Examiner again regards as quite significant . "Not no more than I told him I
was after Guy to get my permit."
Later that same day, Pruitt again talked to White and told him that he had been
unsuccessful in locating Smithers to obtain a work permit and was informed by
White that it would be necessary to obtain the work permit from Smithers . Pruitt
proceeded to the Middletown office and there he talked to Smithers and after in-
forming Smithers that he was going to work for Redington , Smithers replied that
he had two men going over there in the morning and "you fellows are not going
to work."
Again Pruitt contacted White and , according to Pruitt 's testimony , after threaten-
ing White that he was going to go to the National Labor Relations Board, White
indicated to him that he would give him a work permit. White told Pruitt that he
would have to come to the Cincinnati office to obtain the permit in person.
7. Tuesday, November 11, 1958
The following morning Pruitt went to the Respondent Council's office in Cincin-
nati, accompanied by Fraley, and both received work permits and had the clerical
errors on their previously obtained O.K. clearance slips corrected . Pruitt then pro-
ceeded to the Redington job where he worked for the next 3 weeks. Pruitt further
testified that at the next union meeting of the Respondent Local he cleared into
said Local and has remained ever since a member of that Local.
The above -related detailed facts comprise the entire chronology of Pruitt 's efforts
to obtain work and are the principal events on which the complaint herein is based.
E. Legal conclusion
In the Trial Examiner 's opinion these events failed to establish even a prima facie
case. These facts constitute nothing more than the usual story of a loyal union
member seeking to have certain rights and benefits of which he is aware and with
which he desires to fully comply bestowed upon him in keeping with the labor or-
ganization's constitution and bylaws . The National Labor Relations Board is not
the proper forum in which a complaining party under such circumstances should
seek redress.
Even accepting Pruitt's own testimony as to the conversation that occurred on or
about October 31, 1958, when he first sought employment with Winkelman there
is nothing therein indicating that he was told by any employer representative that
it would be necessary for him to be referred by either of the Respondent Unions
or that a work permit was necessary . To the contrary it was Pruitt himself who
did all the talking about obtaining a clearance and/or work permit and not the
employer . Accepting Pruitt's version of the superintendent 's remarks they can
easily be construed to mean that the superintendent was ready and willing for Pruitt
to go to work on Monday morning. But it was Pruitt ( undoubtedly being fully
aware of the Brotherhood 's constitution, bylaws, and trade rules and his obligations
thereunder ) who voluntarily indicated that he was unwilling to come to work until
such time as he had obtained clearance and/or a work permit. The same desire on
the part of Pruitt is again reflected in his own words when on Tuesday, November 4,
he told Superintendent Spencer, "as soon as I got my book in I'd be ready to go to
work." And again on Monday , November 10, "I [Pruitt ] said I'd go to work as soon
as I could get a permit ." Such voluntary action on the part of the Charging Party
hardly rises to the level of evidence necessary to show an illegal arrangement or
practice between the employers named herein and either of the Respondent labor
organizations.
The numerous contacts between Pruitt and agents of the Respondent Council and
Respondent Local between the dates of November 3 and 11, 1958, are hardly worthy
of further comment by this Trial Examiner , in view of the already -indicated volun-
tarism of Pruitt 's acts because of his own desire to comply with certain rules of
his own labor organization. Nevertheless , however, this Trial Examiner desires to
note that this record is void of any evidence tending to prove that anyone other than
the two employees requested by Hays of the Redington Company on November 10,
1958 , were ever requested by any of the employers named herein. It is clear, how-
ever, that during the material period of time the employers named herein employed
and worked nearly 100 different carpenters . The employers testified that on
OHIO VALLEY CARPENTERS ' DISTRICT COUNCIL, ETC . 1137
occasions they called the Union for referrals, but that 95 percent of the employees
were hired on the job. This testimony stands unrefuted in the record.
The testimony of Respondents, as corroborated by the testimony of employer
agents, clearly establishes that there was a work dispute between the Respondents
herein and some of the employers at the Wilmington Air Force Base during the
period between approximately November 3 and November 7 or 8, 1958. This fact,
coupled with the apparent "hell bent" attitude of Pruitt, easily accounts for the
comments attributed to Smithers by Pruitt which might otherwise be deserving of
more careful scrutiny as possible violation of Section 8(b)(1) (A) of the Act. In
the absence of an. exclusive hiring-hall arrangement, the manner or referrals by the
Unions has not been regulated by the law or Board decisions thereunder. Further
comment would only be redundant to an already belabored set of facts. The Trial
Examiner shall recommend dismissal of the complaint in its entirety.
F. Consideration of other acts of alleged coercion
Auttie B. Brickey testified that he was a member of Local 2408 located at Xenia,
Ohio , a carpenters local affiliated with the International Brotherhood of Carpenters
and Joiners of America , AFL-CIO. Brickey was first employed by Gateway in
September 1958 on one of their jobs located at Yellow Springs, Ohio. According
to Brickey 's testimony the latter part of September he was transferred to the Gate-
way job at Wilmington , Ohio. Shortly after going to work in Wilmington, Brickey
stated that he was told by his carpenter foreman , Bill Stevens , the following , "Well,
he [Stevens ] said we could go to work if we would give him the money and he
would go to Cincinnati and get us a permit." Brickey gave the money to Stevens
and while he was away from the job presumably obtaining the permits , Guy Smithers,
the business agent of Respondent Local, showed up on the job and asked the em-
ployees if they were members of the Respondent Local or had work permits. Brickey
testified as follows on direct examination:
Q. What else•did he say?
A. Or he said we might get fined if we did. He said he was not telling us
to quit.
Q. But if you worked?
A. But if we worked we might get fined or something like that . So we quit.
Q. And do you know how long it was before you started back to work there?
A. I don't remember for sure.
TRIAL EXAMINER: Can you estimate, was it a matter of 2 or 3 days?
A. I believe we went back to work the same day, I am not sure.
This evidence may very well tend to show a violation of Section 8(a)(1) and (3)
of the Act, had such a charge been filed. However, accepting Brickey's version of
Smithers' conversation, it fails to prove that Smithers caused or attempted to cause
the discharge of Brickey or any of his fellow employees. Smithers did nothing more
than remind Brickey and the others of their union obligations and thereafter they
voluntarily quit working until such time as they had voluntarily complied with the
provisions of the Respondents' constitution, bylaws, and trade rules. As this Trial
Examiner has indicated in an Intermediate Report of an earlier companion case to
the one herein, the Board has stated: "Absent any evidence that the employers had
agreed to be bound by the bylaws, trade, and working rules, it cannot be found
that closed-shop arrangements existed so'.ely ,by reason of such rules and bylaws." 4
Emmett Smith voluntarily sought to comply with the union rules. The ineffective-
ness of his testimony toward proving the allegation of the complaint is reflected in
the following answer given on direct examination. Answer: "Well, when we
[Smith and Leslie Blanton] asked him for a job we told him [Superintendent
Spencer] that we was out of 2408 and that if he would give us a job that we would
have to get a permit to work in that area."
Addie Fraley, Jr.'s testimony does little more than add credence to the chain of
factual events heretofore set forth in detail as testified to by Pruitt and which the
Trial Examiner has already found fails to establish a prima facie case. It is ap-
parent from the testimony of both Fraley and Pruitt that while Fraley accompanied
4 See McGraw Construction Co, [no, 131 NLRB 854, wherein the Board 's decision
in Miami Valley Carpenters District Council, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO (Bowling Supply and Service, Inc., et al. ), 127 NLRB 1073, is.
commented on at length.
599198-62-vol. 131-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pruitt on most of his circuitous escapades in an effort to obtain clearance and a
work permit from the Respondents herein, Pruitt served as the primary spokesman
for both men.
Donald Marx's testimony does little more than prove that he had less trouble
than did Pruitt in obtaining a work permit, but apparently more difficulty in ob-
taining clearance into the Respondent Local. The remark attributed to Smithers
by Marx which was as follows, "If they [Pruitt and Fraley] ever do get cleared in
here I'll see to it that they don't get any jobs," is nothing more than a prediction
to a third party of events to transpire. It neither restrained nor coerced. In view
of Pruitt's testimony that he has continued to work in the area since becoming a
member of the Respondent Local it was not even an accurate prediction. While a
portion of Marx's testimony might tend to show an improper or illegal statement
attributable to Williamson, a Winkelman foreman, it is inconsistent with his later
testimony that he didn't apply for work with Winkelman. The Trial Examiner is
of the opinion that Marx's conversation with Williamson was of a general nature
concerning the pending work dispute and whether the Respondent Local was going
to willingly permit anybody to work (i.e., calling a legal strike).
As indicated earlier herein, while the Trial Examiner is quite certain that no one
but carpenter union members can successfully obtain and keep carpentry work in
the Cincinnati area, the situation stems solely from the Respondent Union's con-
stitution, bylaws, and trade rules and the members' willingness to adhere to these
rules. The evidence in this case does not establish by a preponderance of the proof
an unlawful or illegal arrangement and/or practice between the Respondent Unions
and any of the employers named. Miami Valley Carpenters District Council, supra.
Upon the above findings of fact and upon the entire record in the case and my
observations of all witnesses , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Council and Respondent Local No. 1477 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. The employers named herein as parties to the contract, Redington, Winkelman,
Maxon, and Gateway, are engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. Neither the Respondent Council nor the Respondent Local No. 1477 has en-
gaged in unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
APPENDIX A
Portions of Respondent Council's Bylaws
SECTION 24
Par. A-No member of the affiliated local unions of this District shall work on a
job with any person who is employed in any of the branches or subdivision of the
carpentry industry, unless such person is a member of the United Brotherhood of
Carpenters and Joiners of America and in possession of the quarterly working card
and button or bonafide permit, nor shall he permit anyone but members of the
United Brotherhood of Carpenters and Joiners of America to assist him in the
handling of any and all materials, tools, or equipment used in carpentry industry,
after such material or equipment has been delivered on the job site. For conviction
of any violation of this section he shall be fined, disbarred from the job, or sus-
pended for three (3) months. [Emphasis supplied.]
SECTION 25
Par. A-Any man engaged as foreman , whether on a job, or in a shop, shall be a
member of the U.B . of C. and J. of A. None other than a United Brotherhood
foreman shall give orders to our members on any job. [Emphasis supplied.]
Par. C-No member of the United Brotherhood of Carpenters and Joiners of
America shall be allowed to serve in the capacity of foreman on any job in this
District unless he has become conversant with the By-Laws and Trade Rules of this
District.
Par. D-No foreman shall permit any others than members of the United Brother-
hood of Carpenters and Joiners of America to do any work involving the use of
carpenter 's tools, material , and/or equipment . [ Emphasis supplied.]
GREAT EASTERN COLOR LITHOGRAPHIC CORP. 1139
Par. F-The Foreman and steward shall call the District Council office immedi-
ately in case of any labor or jurisdictional dispute on the job.
Par. G-Any carpenter foreman or other member in this District who employs
or works carpenters without a working card or bona fide permit of this District shall
be fined for the first offense, and for the second offense he shall be ruled off the job
for the duration of the job. [Emphasis supplied.]
Par. I-If a contractor intends to lay off a foreman in this district he shall notify
the District Secretary.
Par. K-All members of the United Brotherhood of Carpenters and Joiners of
America employed as General Foreman, Foreman, or in any capacity where he
gives or directs work orders to carpenters within the jurisdiction of the Ohio Valley
Carpenters District Council must be in attendance at the quarterly indoctrination
classes for foreman to be held on the third Saturday of January, April, July, and
October of each year at the Carpenters' Home Building, 1228 Walnut St., Cincinnati,
Ohio. Sickness and unavoidable accident shall be the only excuse for non-
attendance. No member of the United Brotherhood shall work under any foreman
who does not attend these meetings.
SECTION 30
Par. A-The first member on any job (foreman excepted) shall be Steward until
the Business Agent arrives. The Business Agents shall appoint all Stewards, who
shall fill out and send in Steward's report cards weekly to the District Council.
Par. B-The Steward shall immediately see that all carpenters on the job have
the current working card or bona fide permit, and all members coming on the job
thereafter shall show working credentials to the Steward before starting to work.
[Emphasis supplied.]
Par. D-The Steward shall report to the office immediately any infraction of the
Rules or Agreement.
Par. E-The Steward shall have the power to examine the pay envelope or pay
check of any member on the job, upon the order of the Business Agent or District
Secretary.
Par. H-The first member starting to work on a job shall notify the District
Council office of the location of the job.
Par. J-Any Employer discharging members for upholding Trade Rules shall
be deprived of Union Carpenters until the matter has been properly adjusted.
SECTION 31
Any member refusing to show his working card when called upon by the Business
Agent, Steward or brother member shall be subject to charges and penalized.
SECTION 35
Par. A-It shall be the duty of the Business Agents and the Secretary to see that
these Laws and Trade Rules are strictly enforced throughout the district.
Par. B-The Business Agents shall have the power, when they find members
violating Trade Rules, to remove offending members from the job, pending action
of Council.
Par. C-Any member removed from a job by the Business Agent for violating
Trade Rules, and convicted of same, cannot go back to work on said job for the
duration of said job , nor can he work for the same contractor for a period of one (1)
year, except by permission of the District Council.
Great Eastern Color Lithographic Corp . and Local 52, Amal-
gamated Lithographers of America , Petitioner. Case No.
3-RC-92445. June 12, 1961
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of. Election issued by the
Board on January 10, 1961,1 an election by secret ballot was conducted
1 Not published in NLRB volumes.
131 NLRB No. 138.