The Hunkin-Conkey Construction Co.

National Labor Relations Board - Board Decisions

Aug 29, 1952

100 N.L.R.B. 955 (N.L.R.B. 1952)

THE HUNKIN-CONKEY CONSTRUCTION COMPANY 955
respect to rates of pay, wages, hours of employment, and other conditions
of employment, and if an agreement is reached, embody such understanding
in a signed contract. The bargaining unit is:
All our over-the-road drivers, excluding all professional employees,
guards, and supervisors as defined in the Act.
- All our employees are free to become or remain members Of INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, LOCAL No. 991, AFL, or TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS
LOCAL UNION 726, AFL, or of any other labor organization, except to the extent
above stated.
J. L. DEAN, D/B/A D & D TRANSPORTATION COMPANY,
Employer.
By -----------------------------------------------------
(Representative ) ( Title)
Dated --------------------
J. L. DEAN & JOHN H. DOVE, A CO -PARTNERSHIP
FORMERLY D/B/A D & D TRANSPORTATION COM-
PANY,
Employer.
By -----------------------------------------------------
Dated --------------------
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 HUNKIN-CONKEY CONSTRUCTION COMPANY and STEWART LEROY
LIGHTFOOT
HOISTING, PORTABLE , SHOVEL ENGINEERS ' AND FIREMEN 'S LOCAL UNIONS
Nos. 18 , 18-A, 18-B , 18-C, INTERNATIONAL UNION OF OPERATING
ENGINEERS , AFL and STEWART LEROY LIGHTFOOT. Cases Nos.
8-CA -307 and 8-CB5. August 29, 1959
Supplemental Decision and Order
On July 23, 1951, the Board issued a Decision and Order in the
above-entitled proceeding finding, inter alia, that by the discharge of
Stewart Leroy Lightfoot by the Respondent Company at the request
and demand of the Respondent Unions, the Respondent Company and
the Respondent Unions had violated Section 8 (a) (1) and (3) of the
Act and Section 8 (b) (1) (A) and 8 (b) (2) of the Act, respectively.
Thereafter, on August 2, 1951, the Respondents filed a motion for
reconsideration of this portion of the Board's Decision and requested
that the record be reopened to afford the Respondents the opportunity
to submit evidence which they contended would impeach the credi-
bility of Lightfoot.
On August 17, 1951, the Board issued an Order in which it re-
manded the instant case to the Regional Director of the Eighth
100 NLRB No. 138.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region for the purpose of reopening the record in this proceeding,
to permit the Respondents at a further hearing to introduce the
evidence proffered in their motion which was not available- at the
time of the hearing, and'also to permit the General Counsel to offer
any rebuttal evidence on this issue . The Board further ordered that
the Trial Examiner, James A. Shaw, submit a supplemental Interme-
diate Report setting forth his findings of fact and conclusion with
respect to the evidence adduced at the further hearing and the effect
of such findings and conclusions upon the original Intermediate Re-
port. The Board also ordered that its prior Order in this proceeding,
insofar as it involved Lightfoot, be stayed pending the Board's re-
consideration of this matter.
On May 20, 1952, Trial Examiner Shaw issued his Supplementary
Intermediate Report, a copy of which is attached hereto, in which
lie found no reason to modify or change the findings, conclusions, and
recommendations in his original Intermediate Report. Thereafter,
the Respondents filed exceptions to the Supplementary Intermediate
Report and a supporting brief.,
The Board has reviewed the rulings made by the Trial Examiner
at the further hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has consid-
ered the Intermediate Report and the Supplementary Intermediate
Report, the exceptions and briefs to the Intermediate Report and
Supplementary Intermediate Report, and the entire record in the
case, and hereby finds, in accord with the supplementary findings,
conclusions, and recommendations of the Trial Examiner which are
hereby adopted, no reason to modify or change the Decision and
Order of July 23,1951,2 herein.
Order
IT Is ORDERED that the Board's Order of August 17, 1951, which
stayed its Decision and Order 'of July 23, 1951, insofar as it involved
1 Respondent 's request for oral argument Is hereby denied, as the record and briefs and
exceptions adequately present the issues and positions of the parties.
2 The Respondents argue that the decision of the Ninth Circuit in N. L. R. B . v. Atkinson
Co. et al., 195 F. 2d 141 , sustains their contention that It was arbitrary and capricious and
an abuse of its discretion for the Board to proceed as it did in this case. We find no merit
In this contention . The Atkinson case is not apposite here, for it was concerned with a
situation where the parties entered into a closed -shop contract and an employee was dis-
charged thereunder at a time when the Board was not asserting jurisdiction over the
building and construction industry . The Board found a violation of the Act at a time
when it was taking jurisdiction over that industry . The court reversed the Board because
It held that the Board 's change in jurisdictional policy should not be applied retroactively.
In the instant case all the conduct of the Respondents which we have found illegal
occurred at a time when the Board was asserting jurisdiction over the building and con-
struction industry ; since the passage of the Labor Management Relations Act of 1947,
the Board has consistently taken jurisdiction over employers in the building and construc-
tion industry ( Brown and Root, Inc, et al., 77 NLRB 1136 ; Starrett Brothers & Eken,
Inc., 77 NLRB 275).
TIE HUNKIN-CONKEY CONSTRUCTION COMPANY 957
Stewart Leroy Lightfoot , be, and it hereby is , vacated and set aside,.
and the Board 's Order of July 23, 1951, be, and it hereby is, after
reconsideration , affirmed.
Mix u ms HOUSTON and STYLES took no part in the consideration
of the above Supplemental Decision and Order.
Supplementary Intermediate Report
On August 17, 1951, the Board issued an Order remanding the instant case to
the Regional Director for the Eighth Region (Cleveland, Ohio), for the purpose
of reopening the record and the taking of further testimony for the reasons set
forth below. Since the Board's Order itself clearly states the issues involved
herein it is set forth immediately below:
Order Reopening Record and Remanding Case to Regional Director
On July 23, 1951, the Board issued a Decision and Order in the above-
entitled proceeding finding inter alia that by the discharge of one Lightfoot
by the Respondent Company at the request and demand of the Respondent
Unions, the Respondent Company and the Respondent Unions had violated
Section 8 (a) (1) and (3) of the Act and Section 8 (b) (1) (A) and 8 (b)
(2) of the Act, respectively. Thereafter, on August 2, 1951, the Respondent
Company and the Respondent Unions filed a motion for reconsideration of
this portion of the Board's Decision and requested that the record be reopened
to afford the Respondents the opportunity to submit evidence which the
Respondents contend would impeach the credibility of the said Lightfoot.
The Board having duly considered the matter,
IT IS HEREBY ORDERED that the record in this proceeding be reopened and a
further hearing be held for the purpose of permitting the Respondent to
introduce the evidence proffered in the aforesaid motion which was not avail-
able at the time of the hearing and also permitting the General Counsel to
offer any rebuttal evidence on this issue.
IT Is FURTHER ORDERED that this proceeding be remanded to the Regional
Director for the Eighth Region for the purpose of arranging such further
hearing and issuing notice thereof.
IT IS FURTHER ORDERED that the Trial Examiner James A. Shaw submit a
supplemental Intermediate Report setting forth his findings of fact and
conclusions with respect to the evidence adduced at the further hearing and
the effect of such findings and conclusions upon the original Intermediate
Report.
AND IT IS FURTIIER ORDERED that the Board's prior Order in this proceeding,
insofar as it involves Lightfoot, be stayed pending the Board's reconsideration
of this matter.
Thereafter on February 19, 1952, the Regional Director for the Eighth Region
(Cleveland, Ohio), issued his "Notice of Further Hearing" in the above-entitled
matters. Copies of the notice of hearing thereon were duly served upon the
Respondents, together with a copy of the Board's Order.
Pursuant to notice, the hearing was held at Akron, Ohio, on March 10, 1952,
before the undersigned Trial Examiner duly designated by the Board in its Order
set forth above. The General Counsel and the Respondents were represented by
counsel, and all participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence pertinent to and
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited to the issues set forth in the Board's Order was afforded all parties.
Counsel for the parties availed themselves of the opportunity to argue orally
before the undersigned. Pursuant to leave granted by the undersigned at the
close of the hearing, counsel for the Respondents filed a brief with the under-
signed. The General Counsel did not choose to do so.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
As the undersigned sees it the Board ordered the record herein reopened to
permit the Respondents to present newly discovered evidence that was unavail-
able to them at the time of the original hearing. The Respondents further con-
tended that the evidence it would offer would so thoroughly impeach Lightfoot's
original testimony that the undersigned would be compelled to reconsider and
reverse his original findings; and that as a consequence the Board's original
Decision and Order should be set aside as regards Lightfoot.
The answer to all of this is of course the record of both the original and
reopened hearings. Let us look at the record as a whole.
To begin with it is the contention of the Respondents that Lightfoot perjured
himself at the original hearing herein when he testified that he "had not done"
any work at all "during the period between December 5, 1949, and February 21,
1950"; he further "perjured himself when he testified under oath, on March 10,
1952, that he had done virtually all his work cleaning cattle cars during the night
season" ; and that he "perjured himself in filing his income tax returns by failing
to make any showing of the income derived from his work during the period with
which we are here concerned." "
By far the most important testimony offered by the Respondents in support
of their contention that Lightfoot was and still is a perjurer was that of Light-
foot himself. At the onset df the hearing herein counsel for the Respondents
called Lightfoot as a witness. The following is a summation of his testimony,
that is pertinent to the principal issue involved herein.
Lightfoot testified that sometime in the winter of 1949-50 he cleaned manure
out of stock cars that were parked in the Pennsylvania Railroad yards across
the street from his home and later sold it to numerous individuals around Mas-
sillon, Ohio, as fertilizer for their gardens. When he started on this venture is
not shown in the record, but it was sometime in November 1949, while he was
still in the employ of the Resopndent Company at Bowerston, Ohio. Before
he started to clean out the cars and haul the manure away, he secured permis-
sion to do so from the brakeman in charge of the train crew that switched the
empty cars around the yards? Other than his conversations with the brakeman
and the train crew he made no further effort to contact railroad officials such
as the yardmaster or freight agent for permission to clean out the cars and haul
away the manure.
It was the custom for the railroad company to switch the empty stock cars
onto the siding and later assemble them and run them over to Crestline, Ohio,
where they were cleaned out by laborers. The manure was then either given
away or stacked?
1 Quoted portions from Respondents' brief. Of which more anon.
From Lightfoot's undenied and uncontradicted testimony, which is credited by the
undersigned
s Crestline, Ohio, is an important junction point on the Pennsylvania. Railroad cars
are assembled there and made into trains which then may be shuttled north, south, east,
or west over its own lines. (See official map of Pennsylvania Railroad and connections.)
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 959
According to Lightfoot he would drive his truck up to the cars, and then,
assisted by his son, load it up with manure and take it over to a field near his
home and stack it. Some of it was stacked on lands owned by an unknown indi-
vidual who operated a nearby gravel pit. There is no testimony in the record
that anybody ever objected to this procedure. Along in the spring of 1950, Light-
foot had accumulated quite a bit of manure, and he decided to sell some of it.
He placed an ad in'the local paper to this effect. As a result he received several
calls for manure from residents of Massillon to whom he sold and delivered it at
the rate of $5 per ton or $7.50 for 2 tons. When the calls for manure would come
in someone in the family, usually his daughter, Mrs. Owen Glick, would take the
buyers' names and note the orders on a sheet of writing paper. Lightfoot and
his boy would then load up the manure in the truck and deliver it. As near as
the undersigned can determine from the record Lighfoot sold somewhere, around
50 tons of manure during this period, and as a result of the venture received a,
gross total of around $300. This price includes his work and labor, that of his
boy, the upkeep of the truck, gas and oil, and other expenses.
When Lightfoot filed his income tax returns for the years 1949 and 1950, he
failed to report the money he received from the sale of manure. One way or
another the Bureau of Internal Revenue got wind of his manure business and
sent an agent to see him and check their suspicions in this regard. Lightfoot
told the agent about the venture and as a result $100 was added to his earnings
for 1949, and $200 for 1950. According to the record this was the end of the
manure business.
As indicated above, the Respondents contend that Lightfoot perjured himself
at the original hearing herein when he testified therein that he "had not done
any work at all" during the period between December 5, 1949, and February 21,
1950. Upon this testimony alone the Respondents contend that "Lightfoot was
impeached from his own mouth," and "His perjury was demonstrated over and
over again," by his admission and his entire testimony as regards the manure
business .' In other words that when Lightfoot testified that he had done no work
he lied because he had in fact engaged in the above-described manure business
during the period 'in question.-
In order to determine this phase of the Respondents' contention as regards
Lightfoot's veracity the undersigned is convinced that his testimony in the.
original hearing is of vital importance, particularly that portion of it from whence
the phrase "had not done any work at all" was taken. It is set forth below.
Q. After you were laid off at Bowerston, did you ever go over to the Wright
job which was three blocks from your home and make an application for
work there?
A. No, I asked Morris for a job last spring.
Q. I am asking you if you ever went to the Wright job to make an appli-
cation?
A. No, I never made an application I talked with Mr. Morris. He is a
superintendent. He said all his men were through the union office.
Trial Examiner SHAW. He said what?
The WITNEss. All his men were through the union office.
Q. (By Mr. Belkin) Did you go down to the union office and ask for a job?
A They sent me to another job.
Q. When was that?
A. That was in the spring when the Wright Brothers opened their-
job-Q. That's before?
A. Yes. "
4 Quoted portion from Respondents' brief
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0. Did you go to the Wright Brothers and ask for'work after you were laid
off at Bowerston?
A. No, sir.
Q. And you had worked there before?
A. One day.
Q You worked there one day, did you?
A. One day.
Q. And you didn't go back to ask for work after you were laid off?
A. I was laid off in the spring.
Trial Examiner SHAW . After the discharge?
The WITNESS. No, sir, I did not.
Q. Did you work at all during the period between December 5, 1949 and
February 21, 1950, when you went to work at the Ferguson & Edmonson job?
A. No, I did not.
Q. Didn't do any work at all?
A. No, sir.
Q. Did you know that there was a demand for men of your caliber and
training in the area?
A. You couldn't get a job.
Q. Did you know that there was a demand?
A. You couldn't get a job.
Q. Did you know that there was a demand for those people, Mr. Lightfoot?
A. No, there wasn't a demand. I didn't know it.
Q. Did you go to the union office at any time after December 8, 1949?
A. I put an out-of-work order in. They were supposed to call me.
Q. I am asking you whether you went to the office?
A. No, sir.
Q. You were out of work and you didn't go to work after December 8, 1949?
A. No.
Q. You didn't, did you?
A. No.
0. Isn 't it a fact that you had a job tending bar during this time?
A. No, sir, I did not.
An examination of the above testimony shows that counsel for the Respondents
was interrogating Lightfoot as regards what "jobs " he had held and for whom
he had either worked or attempted to secure employment from during the period
in question . The record is silent as regards "self help" or self-employment.
Moreover, the record clearly shows that when Lightfoot uses the word "work" in
his testimony he means working for wages for'an employer. The undersigned
does not subscribe to the philosophy that a sentence taken out of the context of a
witness' testimony is sufficient to label him a perjurer when it is placed alongside
other testimony that shows a contrary situation. It is the record as a whole
that is to be dealt with; not excerpts therefrom that tend to create a doubt as
to a witness ' credibility.
Under the circumstances described above the undersigned is convinced and
finds that Lightfoot did not perjure himself at the original or at the reopened
hearing as regards his activities during the times material herein.
In further support of its position as regards Lightfoot the Respondents offered
the testimony of C. N. Burchfield, district representative of the Respondent Union.
According to Burchfield, Roy Mclllhaney, Lightfoot's brother-in-law, came into
the Union office in Canton , Ohio, to pay his dues, and in the course of a conversa-
tion with the bookkeeper said that "Lightfoot had made over $700.00 last year
on fertilizer." Burchfield in order to verify the bookkeeper 's account of Mc-
Illhaney's statement concerning Lightfoot 's earnings , questioned Mclllhaney him-
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 961
self, and received the same reply. Burchfield, on cross-examination , testified that
at the time McIllhaney "was pretty well oiled and I guess he was just running
off at the mouth," and that by "oiled" he meant "had too much whisky."
The undersigned questioned counsel for the Respondents as to the purpose of
this line of inquiry and was advised by him in substance that it was to show
Lightfoot's earnings in the manure business, and as further evidence of his
unreliability as a witness.
While the undersigned credits Burchfield's testimony regarding the above
incident, he nevertheless must reject it in toto for the obvious reason that it is
not only the sort of hearsay testimony that is objectionable but under the circum-
stances described by Burchfield of no probative value in the determination of the
issues involved herein.
We now come to the second contention of the Respondents that Lightfoot
perjured himself when he testified, under oath, on March 10, 1952, "that he had
done virtually all his work cleaning cattle cars during the night season." In
support of its contention in this regard the Respondents rely on the testimony
of Lightfoot's daughter, Mrs. Owen Glick. According to the Respondents, Light-
foot "attempted to maintain that this work was only done in the evening, yet
later his own daughter, who had been present in the hearing room throughout
his testimony, testified that he had not performed work in the evening."' Here
again we are faced with the proposition that a line or two out of the context of a
witness ' testimony is legally sufficient to predicate a finding of fact thereon. As
the undersigned has stated above he does not subscribe to such a theory for the
simple reason that he feels that it not only does violence to the accepted rules
of evidence but likewise to the reasoning of the Supreme Court in the Universal
Camera case.° Consequently the answer to the Respondents' position is the record
itself.
Lightfoot testified that while he was working on the Bowerston, Ohio, job
for the Respondent Company, he would clean manure out of the stock cars in
the daytime if there was any on the siding across from his home. At this time
he was working at nights, so it would have been impossible for him to have
cleaned the cars out during the "night season." After he was discharged by the
Respondent Company on December 6, 1949, he cleaned out cars whenever they
were available, sometimes in the daytime but mostly in the evening.' Nowhere
in'his testimony does he state that he entered into the stock cars during the
"night season" and took therefrom the manure that littered the cars. Nor did
his daughter so testify as will be shown below.
Now, as to the testimony of Mrs. Glick (Lightfoot's daughter) as regards
Lightfoot's alleged perjured testimony to the effect e that he had done virtually
all his work cleaning cattle cars during the "night season." On direct examina-
tion at page 443 et seq. of the record, she testified as follows in this regard :
Q. Directing your attention to the first part of December of 1949 and up
to April or May of 1950, during that time you heard this testimony that your
father did some unloading of some cars?
A. Yes.
Q. And that was at the railroad tracks right across from your home?
A. Yes.
Q. Could you see him from your home?
A. Yes, I could.
° Quoted portions from Respondents' brief, middle of page 2.
° See Universal Camera Corp. v. N. L R B., 340 U. S. 474.
a According to the record the stock cars were unloaded at the yards of a local meat
packer. Since Massillon, Ohio, is a small city, of approximately 30,000, it is reasonable to
infer that stock cars were not placed on the siding every day.
8 Quoted portion from Respondents' brief.
962 DECISION OF NATIONAL LABOR RELATIONS BOARD
Q. When did he do this unloading?
A. Well, sometimes-whenever the cars came in.
Q. What time of the day did he do it?
A. Well, Sometimes in the afternoon, and in the evening, early in the
evening.
Q. Did your father work any place else between December and around
February 21st, when he went to work at a job?
A. No. '
On cross-examination her entire testimony in this regard is found at pages
446 and 447 of the record. It is set forth below :
Q. (By Mr. Belkin) Mrs. Glick, you said your dad did this work'sometimes
in the afternoon and sometimes in the early evening; is that,correct?
A. Yes.
Q. When would he quit work when he worked early in the evening?
A. Well, it didn't get (lark till about 5:30 or nine o'clock. He always
worked while there was daylight.
He worked as long as there was daylight?
Not every clay. There wasn't cars every day.
When these were cars he only worked in the daylight?
Yes. - Sometimes it got dark before he got it all off.
Would he work in the dark?
Sometimes.
That was very seldom, wasn't it?
That was very seldom.
He didn't have any light in those cars, did he?
No, no light at all.
Q. Therefore he did his work as much as possible as long as there was
daylight?
A. Yes.
Q. This work was done in the months of December 1949 on through
March 1950?
A. Yes.
Mr. BELKIN. I would appreciate it if the Trial Examiner would take
judicial notice of the times of sun rises and sunsets during the months of
December through March in this area, sir.
Trial Examiner SHAW. I have a recent Farmers' Almanac I will take
judicial notice of.
Mr. BELKII . I think I will show that the time of the setting is certainly
by 7: 00 p. m.
Upon the foregoing and upon the record as a whole the undersigned is con-
vinced and finds that Lightfoot at no time perjured himself in his testimony
before the undersigned as regards the time of clay he engaged in the business of
cleaning manure out of stock or cattle cars in the yards of the Pennsylvania
R. R. Co., Massillon, Ohio.
As indicated above, the Respondents also contend that Lightfoot's failure to re-
port his earnings from the manure business for the years 1949 and 1950 to the
Bureau of Internal -Revenue is further evidence of his instability as a witness
and unsavory characteristics in general.
It is true that Lightfoot (lid not report the monies he received for the manure
he sold during the years 1949 and 1950 to the Bureau of Internal Revenue for
income tax purposes. According to Lightfoot'tbis matter was later settled with
the income tax division.' There is no evidence in the record that the collector
D From Lightfoot's undenied and uncontradicted testimony. It is credited by the
undersigned.
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 963
took either disciplinary action or referred the matter to the Department of
Justice for prosecution. Moreover there is no evidence that Lightfoot either
wilfully concealed his earnings from the sale of manure, or that he even con-
sidered them as such for income tax purposes.
While the undersigned does not condone Lightfoot's derelictions, nevertheless
he is of the opinion that his conduct in this regard was not of such a heinous
and/or larcenous nature that reasonable men would find him unworthy of belief
as to other matters nor compel the drawing of such an inference.
At the hearing herein and in their brief, the Respondents make other conten-
tions as regards Lightfoot's character, particularly that in addition to being a
"liar by the clock" he was also a "thief," and had been an accessory after the
fact in the theft of an automobile, by harboring a fugitive from justice, both
of which are felonies under Ohio criminal law. Since the record is barren of
any reliable, probative, or substantial evidence to support the Respondents'
contentions in this regard,10 the undersigned feels that it not only would needlessly
10 For example , the Respondents contend that Lightfoot was a thief because he stole the
manure from the Pennsylvania Railroad Company They predicate their contention in
this regard on the fact that Lightfoot did not first secure the permission of any responsible
official of the railroad before cleaning the manure out of the cars and carting it away.
It is quite true that Lightfoot did not seek out the yardmaster or some person in the
hierarchy of the railroad 's management and secure such permission . Admittedly he went
ahead with the manure business on the say -so of some member of the switching crew
This procedure , while unorthodox , does not necessarily make him a thief To begin with,
to dub a man a thief he must have first taken something of value from the lawful owner.
This brings us to the question of who owned the manure Certainly not the Pennsylvania
Railroad Company. The undersigned is convinced that as far as it was concerned the
manure was manure and hence a nuisance This is evidenced by the fact that the cattle
cars that accumulate in its Massillon , Ohio , yards are taken over to Crestline , Ohio, where
tluy aie purged of the manure and placed hack into service If the manure originally had
any value as personal property, then surely title thereto was vested in the owners of the
animals who had excreted it on the floors of the cattle cars Nobody knows who these
original owners were, or where they resided But aside from that , it is clealr_ that _ if_they_
had any such claim to the manure they intended to abandon it Under the usual- rules of
personal property law this abandoned manure could lawfully he appropriated by the first
person who with intent to appropriate it assumed possession . It did 'not become 'the
property of the Pennsylvania Railroad Company either by reason of their ownership of
the cattle cars nor by reason of its temporary custody of the manure splattered by the
animals on the floors of its cars . Under all the circumstances Lightfoot had as much
right to appropriate the manure to his own use as did the railroad company to
haul it over to Crestline and there cast It upon the ground for others to take
and cart away . For a thorough discussion of manure as abandoned personal property.
and abandoned property in general , see N. L. R B. v . Wilbur Ford, Chester Ford, and John
Ford, Co -partners, doing business as Ford Brothers , 73 NLRB 49 , 170 F. 2d 735. In the
Board's brief, at page 33 , footnote 22, the following interesting citation is set forth
. . . See also Harlem v. Lockwood, 37 Conn . 500, 9 Am Rep 350:
Manure left in the streets belongs originally to the owners of the animals that
dropped it , but is to be regarded as abandoned by them . Being abandoned prop-
erty, the first taker has the right to appropriate it; and after one has gathered
it into heaps he must he regarded as entitled to it, against any person having no
title, and must be allowed a reasonable time to take it away. .'. .
Clearly Lightfoot 's activities in the manure business were not of such a nature to dub him
a thief or even a trespasser . but on the other hand , they do indicate to the undersigned
that he valued his work and labor in this regard at a ridiculously low premium when all
factors are taken into consider ation
In the considered opinion of the undersigned , the same reasoning applies to the conten-
tion of the Respondents that Lightfoot further evidenced his larcenous characteristics
by purchasing junk from the garbage collectors of the city of Massillon , Ohio The junk
referred to is that usually found in the back alleys of towns and cities across the land,
such as old bottles, tin cans, pieces of iron, old and worn out overshoes, bicycle tires, auto
tires , and all manner of things , which the average citizen not only discards , but insists be
carted away as quickly as possible
22726053-vol. 100-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encumber this Report to set forth herein the numerous accusations of counsel
by means of innuendo and otherwise as regards Lightfoot 's character , but would
serve no useful purpose in the undersigned 's ultimate findings herein . In passing,
the undersigned has this comment to make , in justice to all concerned with these
proceedings , that in the absence of any substantial evidence (as a matter of fact
not even a scintilla ) that Lightfoot had ever been arrested , arraigned , indicted
by a grand jury, or convicted of any crime , either misdemeanor or felony, such
accusations must of necessity be ignored by a trier of the facts in testing a
witness' credibility.
In its brief the Respondents further contend that the Board acted in an arbi-
trary and capricious manner by processing the instant case . Its contention is
set forth below:
Finally , we would like to call to the attention of the Trial Examiner the
fact that the 9th Circuit Court of Appeals has sustained these contentions
we originally raised before him and also before the Board to the effect
that since the Board did not permit Union Security elections in the Build-
ing Construction Industry during the period in question it was arbitrary
and capricious and an abuse of its discretion for the Board to then proceed
as it did in this case . I am referring to the decision of that Court in
NLRB versus Guy F. Atkinson Company , 21 Labor Cases No . 88809.
Clearly the Respondents ' contention in this regard is beyond the scope of the
Board's Order reopening the record herein . Consequently the undersigned
makes no comment."
Conclusions
In view of the foregoing and upon the entire record in the case the under-
signed finds no reason to modify or change the findings , conclusions , and recom-
mendations in his original Intermediate Report.
11 See Matter of Operating Engineers Local Union No. 8 of the International Union of
Operating Engineers, Plaintiff v. Gerald A. Brown as the Regional Director of the Twen-
tieth Region of the National Labor Relations Board , et al ., Defendants, in the District
Court of the United States for the Nortern District of California, Southern Division,
Case No . 31262 , original filed March 5, 1952 ; before Pope, Circuit Judge, and Carter and
Murphy, District Judges.
THE HILLS BROTHERS COMPANY and AMERICAN FEDERATION OF LABOR,
PETITIONER . Case No.10-RC-1599. August $9,1952
Supplemental Decision , Order, and Second Direction of Election
On March 20, 1952, pursuant to the Board's Decision and Direction
of Election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Tenth
Region, among the Employer's employees at Bartow , Florida, to de-
termine whether or not the said employees wished the Petitioner to
represent them in collective bargaining.'
Upon the conclusion of the election, a tally of ballots was furnished
the parties. The tally . shows that of approximately 230 eligible
1 Unpublished decision issued December 4, 1951.
100 NLRB No. 141.