The Holmes Construction Co.

National Labor Relations Board - Board Decisions

Jul 25, 1957

118 N.L.R.B. 827 (N.L.R.B. 1957)

THE HOLMES CONSTRUCTION CO. 827
WE, WILL offer tq John Fowler immediate and full reinstatement to his,
former or substantially equivalent position , without prejudice to his seniority
.and other rights and . privileges, and make - him: whole ., fgr. any loss of . pay. he -may
have suffered by reason of our discrimination against him.
All our members are free to become or refrain from becoming . members of the
above Union or any other labor organization.
SOUTHERN WIRE AND IRON, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
The Holmes Construction Co. and William McMahon, its agent:
and Harold A. Hanlon and Carpenters District Council of Madi-
son County, Illinois, and Vicinity, affiliated with United
Brotherhood of Carpenters and Joiners of America , AFL-CIO,
and Local 633, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Parties to the Contract
Carpenters District Council of Madison County, Illinois, and,
Vicinity, affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and Local 633, United Brother-
hood of Carpenters and Joiners of America , AFL-CIO, and
William McMahon , their agent and Harold A. Hanlon and The
Holmes Construction Co., Party to the Contract. Cases Nos..
14-CA-1485 and 14-CB--878. July 25,1957
DECISION AND ORDER
On January 11, 1957, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report, attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and supporting brief. The Respondents
filed no exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Leedom and
Members Murdock and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
118 NLRB No. 101.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief , and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that :
1. The Respondent The Holmes Construction Co., its officers, agents,
successors , and assigns, shall :
a. Cease and desist from :
(1) Giving effect to, maintaining or enforcing any understanding
or arrangement with the Respondent Unions, or otherwise maintain-
ing or enforcing any employment practice, requiring membership
in the Respondent Unions or any other labor organizations as a con-
dition of employment, except where, and to the extent that, such con-
dition of employment may be lawfully established by an agreement
in conformity with Section 8 (a) (3) of the Act.
(2) In any like or related manner, interfering with, restraining,
or coercing its employees, or applicants for employment, in the exer-
cise of rights guaranteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized by Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds
-will effectuate the policies of the Act:
(1) Post in conspicuous places at its business operations within the
jurisdiction of the Carpenters District Council of Madison County,
Illinois, and Vicinity, in the event such operations are there being
maintained , copies of the notice hereto attached and marked "Appen-
dix A." 1 Copies of said notice, to be furnished by the Regional Di-
rector for the Fourteenth Region, after being duly signed by an
authorized representative of the Respondent Company, shall be posted
by the Respondent Company immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in conspic-
uous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent Company to insure that said notices are not altered, defaced, or
covered by any other material.
In the event that this Order is enforced by a decree of the United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
THE HOLMES CONSTRUCTION CO. 829
(2) Notify the Regional Director for the Fourteenth region, in
writing, within ten (10) days from the date of this Order, what steps
have been taken to-comply herewith.
2. The Respondent Unions, Carpenters District Council of Madison
County, Illinois, and Vicinity, affiliated with United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and Local 633, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, its
officers, representatives, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Giving effect to, maintaining or enforcing, or causing or at-
tempting to cause the Respondent Company to give effect to, maintain
or enforce, any arrangement, requiring membership in the Respondent
Unions as a condition of employment by the Respondent Company,
or in any manner causing or attempting to cause the Respondent Com-
pany to maintain or enforce any employment practice requiring such
membership as a condition of employment except where, and to the
extent that, such condition of employment may be lawfully established
by an agreement in conformity with Section 8 (a) (3) of the Act.
(2) In any like or related manner, restraining or coercing employ-
ees of, or applicants for employment by, the Respondent Company,
its successors or assigns, or any other employer, in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
by Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1) Post in conspicuous places in its business offices in Madison
County, Illinois, and vicinity, copies of the notice hereto attached and
marked "Appendix B." 2 Copies of said notice, to be furnished by
the Regional Director for the Fourteenth Region, shall, after being
duly signed by an authorized representative of the Respondent Unions,
be posted by them immediately upon receipt thereof and be maintained
by them for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(2) Additional copies of the notice hereto attached and marked
"Appendix B" shall be signed by a representative of the Respondent
Unions and forthwith returned to the Regional Director for the
Fourteenth Region. These notices shall be posted, the Respondent
Company willing, at places where notices to the Respondent Com-
9 See footnote 1, supra.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's employees are customarily posted, in the event such offices are
being maintained within the jurisdiction of the Carpenters District
Council of Madison County, Illinois, and Vicinity.
(3) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges other violations of the Act not found herein.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT give effect to, maintain or enforce any understand-
ing or arrangement with Carpenters District Council of Madison
County, Illinois, and Vicinity, affiliated with United Brotherhood
.of Carpenters and Joiners of America, AFL-CIO, and Local 633,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or otherwise maintain or enforce any employment
practice requiring membership in a labor organization as a con-
-dition of employment, except where, and to the extent that, such
,condition of employment may be lawfully established by an
agreement in conformity with Section 8 (a) (3) of the Act.
WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce our employees or applicants for employment
in the exercise of rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by Section (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
,coming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the National Labor Relations Act.
THE HOLMES CONSTRUCTION CO.,
Employer.
:Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
THE HOLMES CONSTRUCTION CO.
APPENDIX B
831
To ALL MEMBERS OF CARPENTERS DISTRICT COUNCIL OF MADISON
COUNTY, ILLINOIS, AND VICINITY, AFFILIATED WITH UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-
CIO, AND LOCAL 633, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT give effect to, maintain or enforce, or cause or
attempt to cause The Holmes Construction Co. to give effect to,
maintain or enforce, any arrangement requiring membership in
our labor organization as a condition of employment, or in any
other manner cause or attempt to cause The Holmes Construction
Co. to maintain or enforce any employment practice requiring
such membership as a condition of employment, except where,
and to the extent that, such condition of employment may be
lawfully established by an agreement in conformity with Section
8 (a) (3) of the Act.
WE WILL NOT, in any like or related manner, restrain or coerce
the employees of any employer, or applicants for employment of
any employer, in the exercise of the rights guaranteed in Section
7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
CARPENTERS DISTRICT COUNCIL OF MADISON
COUNTY, ILLINOIS, AND VICINITY, AFFILI-
ATED WITH UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 633, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Harold A. Hanlon, an individual herein referred to as the
Charging Party, the General Counsel by the Regional Director for the Fourteenth
Region (St. Louis, Missouri) of the National Labor Relations Board, herein called
the Board, issued his complaint dated September 21, 1956, against The Holmes
Construction Co., and William McMahon, its agent, herein referred to as the Re-
spondent Company, and Respondent McMahon, respectively, alleging that the
Respondent Company had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of
the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act;
and the General Counsel also issued a complaint the same day, against Carpenters
District Council of Madison County, Illinois, and Vicinity, affiliated with United
Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 633, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO; and William McMa-
hon, their agent, herein respectively referred to as the Respondent Unions, and
Respondent McMahon, alleging that the Respondent Unions had engaged in and
were engaging in unfair labor practices within the meaning of Section 8 (b) (2)
and 8 (b) (1) (A) and Section 2 (6) and (7) of the Act. Copies of the charges,
the complaints together with an order consolidating the cases and notice of hearing
were duly served upon the Charging Party, the Respondent Company, Respondent
McMahon, and the Respondent Unions. The answers filed by the respective Re-
spondents admit certain allegations of the complaints, but deny the commission of
unfair labor practices.
Pursuant to notice a hearing was held before the Trial Examiner on November
7, 1956, at St. Louis, Missouri. Full opportunity to be heard, to examine,.and
cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded the parties. Briefs were received from the General Counsel and the
Respondent Company.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company, an Ohio corporation, with principal offices at Wooster,
Ohio, is engaged in the general construction business. During the 12-month period
ending September 1956, the Respondent Company performed services valued in
excess of $200,000, for enterprises which performed services or shipped goods
valued in excess of $50,000, from points in one State to points in other States.
During the same period, the Respondent Company performed services valued in
excess of $50,000, in several States of the United States, including the State of
Illinois, and shipped or caused to be shipped goods valued in excess of $50,000, to
several States in the United States, including the State of Illinois. It is found that
the Respondent Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Carpenters District Council of Madison County , Illinois, and Vicinity , affiliated
with United Brotherhood of Carpenters and Joiners of America , AFL-CIO; and one
of its constituent locals , Local 633, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
These proceedings involve the Respondent Company's construction of a crusher
plant for the St. Louis Slag Company at Granite City, Illinois. This project was
begun in September or October 1955 and was completed about June 1956. Before
the construction began the president of the Respondent Company, Morgan Winget,
who had not done any work in this area before, arranged a meeting with certain
union representatives for September 20. Present at this meeting, in addition to
Winget, a representative of the St. Louis Slag Company, and the Respondent Com-
pany's general superintendent, Owen L. Hopkinson, were representatives of the
THE HOLMES CONSTRUCTION CO. 833
electricians , engineers , and boilermakers . Present also was William O. Hayes,
secretary -treasurer of the Respondent Unions.
The discussion at the meeting included the type of work to be performed, the
scheduling of the work , the availability of manpower , local fringe benefits, the
jurisdictional claims by the crafts and how conflicts in these claims are ordinarily
resolved. Winget agreed that he would, as was his practice , pay his men the
prevailing union wage rates established for a particular craft. Winget also declared
that "we would abide by bona fide local agreements to the extent that we were
not used as guinea pigs to enforce unusual conditions in the contract or to influence
normal employer, normal union relations . . Hayes did not state that there
were ' or were . not any unusual conditions , and it does not appear that any unusual
conditions arose. During the course of the meeting Hayes informed Winget'that
they had a welfare fund agreement which amounted to 10 cents an hour for each man
as a fringe benefit , and Winget did not raise any objection . At the close of the
meeting Hayes gave Winget a booklet entitled, "Constitution , By-laws and Working
Rules of the Carpenter District Council of Madison , Illinois , and Vicinity ," which
contained a form agreement the Respondent Unions used in the area in connection
with certain general contractor associations . Winget thereafter gave this booklet to
Hopkinson , the superintendent on the project.
The form agreement which expressly incorporates the bylaws and the general
constituent of the Respondent Unions provides , among other things, that the em-
ployer agrees to employ members or those who have signified their intention of
becoming members of the Respondent Unions only , and that the men should be
called for employment through the office of the Respondent Unions. The consti-
tution, bylaws , and working rules provide in part that all foremen shall be members
of the Respondent Unions and impose certain penalties upon the foreman should
he violate the agreement with the general contractor as to such matters as the hiring
procedures . The working rules prohibit members from working with nonmembers.
Stewards have the ditty to ' see- to it that all the regulations are followed and„the
foremen are obligated to assist the stewards in the performance of their duties.
Excerpts of this document giving the provisions described above are reproduced
as Appendix A.
Winget explained , in his testimony , that in practice the prevailing wage rate
would be determined by the timekeeper who would call the unions involved and ob-
tain the rates . In resolving jurisdictional disputes , Hopkinson explained , there was
occasion to rely upon the working rules of the labor organizations involved. Hop-
kinson hired Respondent McMahon and another foreman upon the recommendation
of persons unconnected with the proceeding , after calling one Ellberg , a business
agent of the Respondent Unions.
McMahon, who was a member of the Respondent Unions, was general foreman
of the Respondent Company and had authority over the other foremen and also had
authority to hire and discharge on behalf of the Respondent Company. He testi-
fied that it was his practice in hiring millwrights to call Ellberg and ask for men by
name, and that if none of the men he asked for was available he would select men
from among those named by the Respondent Unions, and further that every man
on this job was called for by him by name . McMahon admitted further as to
Henry H. Michel , who is alleged in this proceeding to have been discriminatorily
denied employment, that Michel would have had to be a member in good standing
with the Respondent Unions before he, McMahon , could have hired Michel.'
According to Henry H . Michel, who had been a member in good standing in
the Respondent Unions until the latter part of 1955, he applied for work at the
Respondent Company's Granite City job on March 14 , 1956. Michel testified
on direct examination that on that date he met Hopkinson at the job and asked
Hopkinson for millwright employment , that Hopkinson asked whether Michel be-
longed to the union stating that he hired all of his men through the union. that
Michel replied that he had a good set of tools and asked whether Hopkinson wanted
any references, that Hopkinson replied in the negative explaining that he could
judge a man by looking at him and would speak to his , Hopkinson's foreman, and
that was all there was to the incident . On cross-examination Michel testified that
in the conversation involved-some elements of which were given in different
'These findings relating to Respondent McMahon are based upon a prehearing state-
ment which McMahon adopted in part during the testimony he gave when called as a
witness by the General Counsel . Mclfahon ' s contradictory testimony which was given
prior to this adoption is not credited . ilfeMahon was not questioned by the other parties.
450553-58-vol. 118-54
,834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sequences on different recitations of the incident-he told Hopkinson he was looking
for millwright work, Hopkinson inquired whether Michel belonged to the union
and stated that he hired his men from the union, Hopkinson stated that he was
filling up his crew but there was some delay because of material, and that he,
Hopkinson, would talk to his foreman. Michel testified further on cross-examina-
tion that when Hopkinson asked whether he, Michel, was a member of the union,
Michel replied that he was not in good standing but that he, Michel, believed it
could be straightened out. Hopkinson testified that he did not remember having
seen Michel before the day of the hearing and did not recall having had a con-
versation with him. In view of the Trial Examiner's impression of Michel as a
witness and his testimony given above, his testimony will not be credited.
B. The conclusions
It is found that at the meeting of September 20, by Winget's declaration to the
union representatives , including Hayes, that the Respondent Company would abide
by the Respondent Unions' local agreements , the Respondent Company and the
Respondent Unions entered into a discriminatory hiring arrangement namely, that
the Respondent Company would employ members of the Respondent Unions only.
It is further found that this arrangement providing for discriminatory hiring was
thereafter maintained and enforced by McMahon in his hiring of personnel. Ac-
cordingly , it is found that the Respondent Unions violated Section 8 (b) (1) (A)
and 8 ( b) (2), and that the Respondent Company violated Section 8 ( a) (1) and
8 (a) (3) of the Act.
It further found that the General Counsel failed to sustain his burden of proof
as to the allegation of discrimination against Henry H. Michel. Accordingly, it
will be recommended that the complaint be dismissed insofar as it alleges a viola-
tion of Section 8 (a) (3) against the Respondent Company and Section 8 (b) (2)
against the Respondent Unions as to Michel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company and the Respondent Unions set forth
in section III, above, occurring in connection with the operations of the Respondent
Company described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
.commerce.
V. THE REMEDY
It having been found that the Respondent Company and the Respondent Unions
have engaged in certain unfair labor practices , it will be recommended that they,
and each of them, cease and desist therefrom , and from engaging in any like or
related conduct , and take certain affirmative action to effectuate the policies of the
Act.
On 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. Carpenters District Council of Madison County, Illinois, and Vicinity,
affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
and Local 633, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By entering into an understanding or arrangement requiring membership in
the Respondent Unions as a condition of employment and by maintaining and
,enforcing an employment practice in accordance therewith, the Respondent Com-
pany engaged in unfair labor practices within the meaning of Section 8 (a) (3) and
8 (a) (1), and. the Respondent Unions engaged in unfair labor practices within
the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
4. The Respondent Company and the Respondent Unions have not engaged in
unfair labor practices by reason of the allegation contained in the complaint relating
to Henry H. Michel.
[Recommendations omitted from publication.]