Bricklayers, Masons, and Plasterers' Int'l Local 18

National Labor Relations Board - Board Decisions

Feb 18, 1965

151 N.L.R.B. 160 (N.L.R.B. 1965)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit embracing all those plants of the Employer in which the Inter-
venor has in the past been recognized as the exclusive bargaining
agent and which are covered by the national agreement.? We
shall therefore grant the motion to dismiss the instant petition,
which requests an election in a single plant unit.
[The Board dismissed the petition.]
' We distinguish our holding here from Swift R Company, 124 NLRB 50. In that case
the Board found that the national negotiations were merely for convenience in bargaining
Here, it is clear the parties intended to effect a consolidation of the separately certified
local plant units into one multiplant unit.
Bricklayers, Masons, and Plasterers ' International Local Union
No. 18 of Missouri [ Ferguson Tile and Marble Co.] and
George Harry Hinnah. Case No. 14-CB-1199. February 18,
1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner William J. Brown
issued his Decision in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations only to the extent consistent with
this Decision and Order.
As noted by the Trial Examiner, the essential facts are not in
dispute. The record reveals that Hinnah, the Charging Party, was
at all material times a member of Tile Setters Helpers Local Union
No. 41, and had worked as a tilesetter's helper prior to June 1963.
At that time, Vice President Glen Lowery of Ferguson Tile and
Marble Co. told Hinnah that he would use him as a tilesetter if
Hinnah could get a work permit from Respondent's business agent,
151 NLRB No. 19.
BRICKLAYERS, MASONS, & PLASTERERS' INT'L LOCAL 18 161
Nally.' Nally gave Hinnah a permit for 30 days, and later issued
a second permit which was valid until August 23, 1963. In Septem-
ber 1963, however, Nally refused Hinnah's request for an additional
permit, and told Hinnah that he had worked long enough and
that two men were out of work at that time. Thereafter, Lowery
continued to work Hinnah as a tilesetter, but in a project some
distance from downtown St. Louis. Also in September, Nally
observed Hinnah working as a tilesetter and refused Hinnah's
renewed request for a permit. Later that same month, at a negoti-
ating session between Respondent and the Association, Nally asked
Lowery what he was going to do about Hinnah, and Lowery replied
that he did not intend to do anything.
On October 12, 1963, Nally wrote to Ferguson advising the
Company that, pursuant to the collective-bargaining agreement
between the Association and Respondent, Ferguson had been iln-
properly forwarding dues for Hinnah, "who is not a member of
Local Union #18, nor is he working under our jurisdiction." The
dues submitted for Hinnah for the months of June, July, and
August were returned to Ferguson with instructions not to include
Hinnah's name in future withholding reports.
Hinnah continued to work for Ferguson without incident until
May 20, 1964, when Nally again encountered Hinnah setting tile.
The following day, Nally wrote a letter to the Joint Arbitration
Board (hereinafter called the JAB), whose duties under the agree-
ment included the settlement of all questions or differences arising
between the parties with respect to the interpretation or enforcement
of the agreement. The letter stated :
Tile Layers Local No. 18 wishes to file charges against the
Ferguson Tile Company for having in it's [sic] employ one
George Hannah [sic] who was not a member of Local #18 nor
is working under the jurisdiction of Local #18 of Missouri.
George Hinnah was observed working in Bellerive Estates,
at Lot 770 on May 20th, and admitted to the undersigned that
he installed the tile in this house.
The letter was handed by Nally to Thomas Dolan, president of
the Association, who read its contents over the telephone to Donald
Lowery, Ferguson's president, and subsequently sent a copy of the
letter to Lowery. Upon receipt of the letter, Lowery consulted with
his brother, and they decided to discharge Hinnah. Donald Lowery
1 The collective-bargaining agreement between Respondent and Tile Contractors of
St Louis and vicinity (hereinafter called the Association), of which Ferguson is a
member, contains no union-security or referral provisions . The agreement does, how-
ever, incorporate by reference a "Code of Ethics ." This document is not in evidence, and
the record does not otherwise reveal whether or not it encompasses union security or
referral procedures.
783-133-66-vol 151-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Hinnah was discharged by Ferguson to "avoid trouble
with the Union." Specifically, the Lowerys had in mind a previous
incident involving one Gene Bonds. In that instance, as here, the
Union charged Ferguson with a violation of the agreement for
working Bonds without a union card or a permit, and the Company
was found guilty by the JAB and fined $50 for the violation. In
addition, Donald Lowery testified that a partial work stoppage
resulted from the Bonds incident?
Both Lowerys testified that Hinnah was discharged as a direct
result of Nally's May 21, 1964, letter to the JAB which evoked fears
of a fine and work stoppage. Before finally discharging Hinnah,
however, the Lowerys suggested that he attempt to straighten his
affairs with the Union so that he could continue to work. Hinnah
filled out a membership application and, upon later inquiring of
Nally whether the application was approved, was told that it was not.
Hinnah asked for what reason the application was denied and
Nally replied, "No reason."
Thereafter, on May 27, 1964, President Lowery handed Hinnah
a letter stating that, at Respondent's insistence , Ferguson was
releasing Hinnah from his employment as a tilesetter.
Subsequent to his discharge and the filing of the unfair labor
practice charge in the instant case, Hinnah again sought a permit
from Nally. Nally admittedly denied Hinnah the permit until
disposition of the present charges.
As stated by the Trial Examiner, the issues involved are whether
the Union (1) in violation of Section 8(b) (2) and (1) (A), caused
or attempted to cause Ferguson to lay off Hinnah because he was
not a member of Respondent, and (2) denied Hinnah a work permit
because he had filed. unfair labor practice charges in the instant
case, in violation of Section 8(b) (1) (A). The Trial Examiner
answered both questions in the negative and concluded that the
allegations of the complaint had not been sustained. We do not
agree.
As to the first issue, the Trial Examiner concluded that there was
no reasonable basis for finding that Respondent, in filing its May 21,
1964, charges with the JAB, intended anything other than the
processing of those charges before the JAB. We cannot accept
this interpretation of the events. Respondent's letter, on its face,
charged Ferguson with employing Hinnah, "who is not a member
of Local #18 of Missouri, nor is working under the jurisdiction of
Local #18 of Missouri." Upon receipt of this letter, Ferguson, in
while Lowery was uncertain whether the Bonds incident occurred in 1961 or 1963,
it is clear from the whole of his testimony that the incident made a substantial impact
upon him and was uppermost in his mind when he received Nally's letter to the JAB in
May 1964.
BRICKLAYERS, MASONS, & PLASTERERS' INT'L LOCAL 18 163
our opinion, could reasonably assume that Respondent was now
proceeding, as it had in the Bonds incident, to secure the discharge
of Hinnah. Unwilling to face a strike or a fine, or both, Ferguson
yielded to the implied threat of Respondent.
Nor are we required to reject the reasonable, if not obvious,
inference to be drawn from the state of the record before us merely
bcause the Union's letter reached Ferguson through the JAB or
because it did not demand, in haec verba, Hinnah's discharge. As
stated in Chief Freight Lines Company, 111 NLRB 22, 24:
We reject the argument that a finding of "cause or attempt
to cause," under Section 8(b) (2) of the Act, may only be
predicated upon direct or expressed threats of retaliation by
a union's agents. It is enough that the union's conduct reveals
an intent to arouse the employer's fear that the hire or reemploy-
ment of an applicant will result in economic pressure against
him.5
This required intent, along with its effectiveness, is amply demon-
strated by a preponderance of the evidence herein.
Moreover, although the written collective-bargaining agreement
between Respondent and the Association contains no union-security
clause or referral procedures, the record reveals the existence of
an oral agreement or arrangement which requires membership in,
or clearance from, Respondent as a condition of employment. For
example, Hinnah testified that he was advised by Glen Lowery
that, "If you get the permit from John Nally, I can put you to
work." Hinnah then called Nally, and Nally said he could come
down to the Union's office and get a permit. Lowery corroborated
Hinnah's testimony and added that, prior to engaging Hinnah as
a tilesetter, he had called Nally several times and requested him
to send tilesetters to Ferguson. On those occasions, Nally said that
he had no one available. When Lowery later suggested to Nally
that he wanted to use Hinnah as a tilesetter, Nally told him to send
Hinnah down to get a permit. Similarly, Donald Lowery stated
that when the Company needs additional employees, "We get them
through the Union Hall." This testimony and that concerning the
Bonds incident, coupled with the express language of the Union's
letter of May 21, 1964, establish the existence of a requirement of
union membership or clearance; a requirement recognized by all
parties in the proceeding despite the occurrence of occasional ex-
ceptions thereto. In the light of this arrangement, Ferguson could
reasonably infer that Respondent's letter of May 21, 1964, to the
JAB was a demand for the discharge of Hinnah.
3 See also St . Joe Paper Company, 135 NLRB 1340.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons, we hold that Respondent, by attempting
to cause and by causing Ferguson to discharge Hinnah, violated
Section 8(b) (2) and (1) (A) of the Act .4
With respect to the second issue, the Trial Examiner concluded
that he had no doubt but that Hinnah was denied a work permit
by Nally because he had filed the unfair labor practice charges in
the instant case. He refused to find a violation of Section 8(b) (1)
(A) based upon this conduct, however, because of his conclusions
that the evidence "abundantly" indicated that neither union mem-
bership nor possession of a work permit was a condition of employ-
ment, and that Section 8(b) (1) (A) cannot be regarded as an
analogue of Section 8(a) (4). We must reject both of these con-
clusions, the first for the reasons stated immediately above. In
any event, the relationship of Section 8(b) (1) (A), on the one hand,
and Section 8(a) (4)and (1), on the other, was recently resolved
and is dispositive of that aspect of this case. Local 138, International
Union of Operating Engineers, AFL-CIO (Charles S. Skwra),
148 NLRB 679. It was there held that a fine imposed by a union
for the filing of an unfair labor practice charge constitutes unlawful
coercion under Section 8(b) (1) (A) and is not immunized by the
proviso thereto. Where, as here, a union attempts to limit access
to the Board's processes by means of job discrimination, the
violation is even more clearly established. We hold, therefore, that
Nally's refusal to issue Hinnah a work permit because Hinnah had
filed unfair labor practice charges violated Section 8('b) (1) (A)
of the Act.
THE REMEDY
In order to remedy the unfair labor practices found, we shall
order the Respondent to cease and desist therefrom, and to take
certain affirmative action designed to effectuate the purposes of
the Act.
Having found that Respondent unlawfully attempted to cause
Ferguson Tile and Marble Co. to discharge George Harry Hinnah,
and unlawfully caused Ferguson Tile and Marble Co. to discharge
Hinnah, we shall order Respondent to notify Ferguson and Hinnah
that it has no objection to the employment of Hinnah. In addition,
we shall order Respondent to make Hinnah whole for any loss of
pay he may have suffered as a result of Respondent having caused
Ferguson to discharge him on May 27, 1964, from that date until
his reemployment by Ferguson or or about June 10, 1964. Should
it appear that Ferguson discriminated against Hinnah after that
4Local Union No. 592, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO ( Brunswick Corporation ), 135 NLRB 999.
BRICKLAYERS, MASONS, & PLASTERERS' INT'L LOCAL 18 165
date, the Board will entertain a motion to modify this part of
its order.
The loss of backpay shall be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, and shall include the payment of interest at the
rate of 6 percent per annum, to be computed in the manner set
forth in Isis Plumbing and Heating Company, 138 NLRB 716.
CONCLUSIONS OF LAW
1. Ferguson Tile and Marble Co. is an Employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent, Bricklayers, Masons, and Plasterers' International
Local Union No. 18 of Missouri, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By attempting to cause, and by causing, Ferguson Tile and
Marble Co. to discharge George Harry Hinnah because Hinnah
was not a member of, or had not received clearance for work from,
Respondent, Respondent violated Section 8(b) (2) and (1) (A) of
the Act.
4. By denying George Harry Hinnah a work permit because
Hinnah had filed unfair labor practice charges with the Board,
Respondent violated Section 8(b) (1) (A) of the Act.
5. The aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
Respondent, Bricklayers, Masons, and Plasterers' International Local
Union No. 18 of Missouri, its officers, agents, and representatives,
shall :
1. Cease and desist from :
(a) Causing or attempting to cause Ferguson Tile and Marble
Co. to discharge, or in any other manner to discriminate against,
George Harry Hinnah, or any other employee or applicant for
employment, in violation of Section 8(a) (3) of the Act.
(b) Denying clearance to, or in any other way discriminating
against, George Harry Hinnah, for filing unfair labor practice
charges with the Board, or otherwise participating or cooperating
in Board proceedings.
(c) In any like or related manner, restraining or coercing
employees in the exercise of rights guaranteed in Section 7 of the
Act.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds
necessary to effectuate the policies of the Act :
(a) Reimburse and make George Harry Hinnah whole for any
loss of pay suffered because of the discrimination against him, as
set forth in the section of this Decision entitled "The Remedy."
(b) Notify Ferguson Tile and Marble Co. and George Harry
Hinnah, in writing, that it has no objection to the continued employ-
ment of Hinnah.
(c) Post at its offices and meeting halls copies of the attached
notice marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for Region 14, shall, after being duly
signed by a representative of Respondent, be posted immediately
upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Sign and mail sufficient copies of said notice to the Regional
Director for Region 14 for posting by Ferguson Tile and Marble
Co., at all locations where notices to its employees are customarily
posted, if the Company is willing to do so.
(e) Notify the Regional Director for Region 14, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply therewith.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order ," the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, REPRESENTATIVES, AND AGENTS
AND TO ALL EMPLOYEES OF FERGUSON TILE AND MARBLE CO.
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, you are hereby notified that :
WE WILL NOT cause, or attempt to cause, Ferguson Tile and
Marble Co. to discharge, or in any other manner discriminate
against, George Harry Hinnah, or any other employee or appli-
cant for employment, in violation of Section 8(a) (3) of the Act.
WE WILL NOT deny clearance to, or in any other way discrim-
inate against, George Harry Hinnah for filing unfair labor
practices with the Board, or otherwise participating or cooper-
ating in Board proceedings.
WE WILL NOT in any other like or related manner restrain or
coerce employees in the exercise of rights guaranteed in Section
7 of the Act.
BRICKLAYERS, MASONS, & PLASTERERS' INT'L LOCAL 18 167
WE WILL reimburse and make George Harry Hinnah whole
for any loss of pay suffered by him because of our having caused
Ferguson Tile and Marble Co. to discharge him.
WE WILL notify, in writing, Ferguson Tile and Marble Co.
and George Harry Hinnah that we have no objection to the
continued employment of Hinnah.
BRICKLAYERS, MASONS, AND PLASTERERS' INTERNA-
TIONAL LOCAL No. 18 OF MISSOURI,
Union.
Dated----- ----------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, 4459 Federal Building , 1520 Market Street , Missouri, Tele-
phone No. MAin 2-4142 , if they have any question concerning this
notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , hereinafter called the Act, arose upon a charge filed on June 1, 1964, by
George Harry Hinnah , an individual , the above-indicated Charging Party. The com-
plaint was issued July 17, 1964, by the General Counsel of the National Labor Rela-
tions Board, acting through the Board 's Regional Director for Region 14. It alleged
and the answer of the above -indicated Respondent , hereinafter called the Union,
denied the commission of unfair labor practices defined in Section 8 (b)(2) and
8 (b) (1) (A ) of the Act by causing Ferguson Tile and Marble Co., of St. Louis, here-
inafter sometimes called Ferguson to lay off Hinnah because he was not a member of
Respondent . The complaint alleged an additional unfair labor practice on the part of
the Union by refusing to give Hinnah a work permit because he had filed unfair labor
practice charges, this refusal being alleged as an act of restraint and coercion within
the purview of Section 8 (b) (1) (A ) of the Act.
Hearing on the issues raised by the complaint and answer was held at St. Louis,
Missouri , on September 28, 1964, before Trial Examiner William J. Brown. At the
hearing the parties appeared as noted above and were accorded full opportunity to
present evidence and argument on the issues . At the conclusion of the taking of
testimony, the General Counsel argued orally on the record in support of his position
on the issues . On October 28, 1964, the Respondent filed a written brief. On the
entire record herein and the basis of my observation of the witnesses , and upon con-
sideration of the oral and written arguments of the parties , I make the following -
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
I find, in accordance with the pleadings and evidence herein, that Ferguson has a
principal office and place of business in St. Louis, Missouri , where it is engaged in the
setting of ceramic tile and marble in the construction and remodeling of industrial,
commercial , and residential buildings. In the course of its business during the calen-
dar year preceding issuance of the complaint , Ferguson purchased goods and materials
valued in excess of $50,000 directly from points outside the State of Missouri, and is
now, and has been at all material times, an employer engaged in commerce within
the meaning of Section 2(6) and ( 7) of the Act.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE RESPONDENT AS A LABOR ORGANIZATION
The pleadings and evidence established , and I find, that Respondent is a labor organ-
ization having its principal office in St. Louis, Missouri , and that it is party to a col-
lective-bargaining agreement with Tile Contractors of St . Louis, Missouri , and Vicin-
ity, an association which represents employers, including Ferguson , for purposes of
collective bargaining with Respondent.
III. THE UNFAIR LABOR PRACTICES
The findings of fact herein are based virtually in their entirety upon uncontraverted
testimony and indisputable evidence . The inference to be drawn from the established
factual pattern presents the principal analytical problem in this case . The General
Counsel 's position essentially is that a union communication which , as hereinafter
more fully explained , came indirectly to the attention of Ferguson caused the layoff
of Hinnah referred to in the complaint . General Counsel asserts that were it not for
the letter, Ferguson would not have laid off Hinnah . The Respondent asserts on the
other hand that the Union 's action could not be said, in the legal sense, to have caused
Ferguson to lay off Hinnah.
The evidence indicates that there has been in effect at all material times a collective-
bargaining agreement between the Tile Contractors of St. Louis and Vicinity and the
Union . The agreement , in evidence as General Counsel 's Exhibit No. 4, covers the
setting of tile, defined in the agreement as burned clay products and substitutes there-
fore intended for use as floor or wall surface. Among other things the agreement pro-
vides for the checkoff of monthly dues in the amount of 5 cents per hour worked
for union members who furnish voluntary checkoff authorizations . Provision is also
made for the payment by employers of the annual sum of $20 toward the support
of an apprenticeship training program with a provision that the Joint Arbitration
Board , a bilateral tribunal established under the agreement , may decrease or increase
the assessment by majority vote in accordance with the needs of the apprenticeship
program. The agreement provides that a joint apprenticeship board, apparently
superseded by the Joint Arbitration Board , should have complete jurisdiction over
apprentices with authority to establish rules and regulations governing their work.
The agreement contains no union -security nor exclusive or nonexclusive referral
provisions.
Hinnah , who appears to have been at all material times a member of Tile Setters
Helpers Local Union No. 41 , presumably affiliated with the Bricklayers , Masons, and
Plasterers ' International , commenced work at the trade as a helper sometime about
1950. In 1962 he was working for a tile contractor known as James Shaw and Son
when he registered under the apprenticeship program . This program was established
under the United States Department of Labor Apprenticeship Bureau in cooperation
with the contractors and the Bricklayers Union . Following an examination given at
the Missouri State Employment Office as part of the apprenticeship program, Hinnah
was notified that he was in a relatively high standing in the program.
In June 1963 Ferguson was in need of setters and called John Nally, business
representative of the Union , who replied that he was unable to refer any . At that
time Glen Lowery, vice president of Ferguson , was somehow aware of Hinnah and
his qualifications . He informed Hinnah that if Hinnah could get a permit from Nally
to work as a setter, the Ferguson firm would have employment for him in that classifi-
cation . Nally issued Hinnah a work permit sometime in June 1963 and Hinnah
commenced work at the tilesetter classification for Ferguson . He was subsequently
issued a second permit but sometime , apparently in early September 1963, Nally
refused Hinnah 's request for any additional work permits . When this was com-
municated to Glen Lowery , Lowery instructed -Hinnah to keep on working at the
tilesetter classification in the Bellerive work project in St. Louis County , apparently
a considerable distance removed from the downtown St. Louis area.
Late in September 1963, while he was employed at the Bellerive project, Hinnah
encountered Nally and asked him again for a permit which Nally refused At that
time Hinnah asked if he could file application for membership in the tilesetters local
and Nally said he could file . It does not appear from the evidence that Hinnah did
file an application at that time . In any event he continued to work uninterruptedly
until the late spring of 1964.
Sometime in the fall of 1963, Nally and Glen Lowery were engaged in contract
negotiations , conceivably in connection with the negotiation of the agreement in
evidence in this proceeding , and at that time Nally asked Glen Lowery what he was
going to do about Hinnah to which Lowery replied that he was not going to do any-
thing . Soon after this exchange between Nally and Lowery , Nally wrote , under the
BRICKLAYERS, MASONS, & PLASTERERS' INT'L LOCAL 18 169
date of October 12, 1963, a letter addressed to the Ferguson Company and in evi-
dence as General Counsel's Exhibit No. 5, informing Ferguson that the Union's audi-
tor advised that Ferguson had been sending in 5-cent monthly dues on Hinnah who
was not a member of Local Union 18 nor working under the Union's jurisdiction,
and requesting that the checkoff be discontinued . This action was presumably taken
in accordance with the provisions of Section 302 of the Labor Management Relations
Act. It is noteworthy that this communication advised the Ferguson firm of the
Union's position that Hinnah was not a member of the Union nor was he working
under its jurisdiction . Hinnah continued working uninterruptedly on the Bellerive
project for Ferguson until the spring of 1964 when he was laid off for about a week
under circumstances which form the issues in the present proceeding.
Reference has been made above to the apprenticeship program. While the testi-
mony would suggest that the program , as it operates among the tilesetters in the St.
Louis area, is not fully understood by any party to the proceeding , there does appear
to be an established program and, at the time of the hearing in the instant case, the
Ferguson Company had in its employ several apprentice tilesetters . There does not
appear to have been any formal textbook learning in an established school for a period
of some years , and the separate apprentice board of former years has been disbanded
and its function taken over by the Joint Arbitration Board . The undisputed testimony
of Nally reveals however that there is a United States Department of Labor Bureau of
Apprentices representative in the area in charge of the program for the Department,
and that apprentices are required to make monthly reports of their progress to the
Joint Arbitration Board . Nally's undisputed testimony also indicates that tilesetter
apprentices come from the ranks of the helpers.
On Saturday , May 18 , 1964, the Helpers Union Local No. 41 held its annual
party at which Nally was a guest. Apparently introduced as a guest of honor, Nally
was accorded a somewhat derisive greeting . The following week while at work on
the Bellerive project Hinnah met Nally, and asked him if he had a good time at the
party; when Nally said that he had not, Hinnah apparently twitted Nally about the
longstanding practice of the Helpers, in booing Nally at the annual dinner At the
same time Nally inspected the work being done by Hinnah and stated to Hinnah that
some of the work that he was performing was work for marblesetters . It was after
this inspection and the reference to marble work that the conversation concerning
the Helpers ' party occurred , and at the conclusion of the latter conversation Nally
left the project.
On May 21 Nally wrote a letter to the Joint Arbitration Board reading as follows:
Tile Layers Local No. 18 wishes to file charges against the Ferguson Tile Com-
pany, for having in its employ one George Hinnah who is not a member of
Local 18 of Missouri nor is working under the jurisdiction of Local 18 of
Missouri.
George Hinnah was observed working in Bellerive Estates at Lot 770 on
May 20 , and admitted to the undersigned that he installed the tile in this house.
This letter was apparently handed by Nally to Dolan, employer representative on
the Joint Arbitration Board , on May 21. On the following day Dolan called Donald
Lowery, president of Ferguson , and read the letter to him . At Lowery's request
Dolan sent him a copy.
According to Donald Lowery, Ferguson decided to release Hinnah about 1 hour
after he received a copy of the Union's letter to the Joint Arbitration Board. Their
decision, according to his uncontradicted testimony, was that they should discharge
Hinnah and let him straighten out his affairs with the Union and then return to work.
After reaching this decision they communicated it to Hinnah who went to Nally and
filled out a application. Thereafter he procured the signature of his fellow employee
Vetmiglia as a sponsor and asked another fellow worker, one Moody, who was willing
to be his second sponsor . For some undisclosed reason his application was not
approved by the Union. On May 27 Hinnah was handed a letter by Donald Lowery,
stating that the Union's letter to the Joint Arbitration Board amounted to an insistence
on the part of the Union, that Hinnah be released from his present position setting tile
in the jurisdiction of Local 18 . The letter does not appear , on its face, to amount to a
forthright discharge but apparently amounted to that in the understanding of all the
parties.
The General Counsel presented evidence of a prior situation involving one Eugene
Bonds who apparently was employed by Ferguson as a helper, then sent out on a
permit basis as a setter. When Bonds continued working as a setter after he was
refused further permits, the Union filed charges before the Joint Arbitration Board
and Ferguson was fined and apparently paid $50 Ferguson's president, Donald
Lowery, was uncertain at the hearing as to the nature of the charges on which they
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid the penalty. He was also uncertain as to whether the Bonds incident occurred in
1961 or 1963 which would tend to cast doubt on his assertion that it was a threat
not easily forgotten.
Following his lack of success in getting membership in the Union , Hannah filed the
charge in the present case on June 1, 1964. On June 8 Nally refused to issue him a
permit pending disposition of the unfair labor practice charge. On June 10 Ferguson
rehired Hmnah as a setter . Sometime in August Hinnah's request to the Union for
membership in the Union or for a permit were refused by Nally.
Conclusions
The question before me is whether or not the evidence in its entirety preponder-
ates in favor of the conclusion that the Union (1) by its May 21 letter to the Joint
Arbitration Board, caused Ferguson to lay off Hinnah because he was not a member
of the Union, and (2) refused him a work permit because of his filing the charges in
the instant case, thereby restraining and coercing him within the purview of Section
8(a)(1) (A) of the Act. For reasons next hereinafter set forth, I believe that the
evidence does not so preponderate.
With respect to the Union's activity in the filing of the charges with the Joint
Arbitration Board on May 21, there is no reasonable basis for concluding that
the Union intended anything other than the processing of those charges before the
Joint Arbitration Board. The Union does not appear to have been a party to or
reasonably to have anticipated that the filing with Dolan would result in anything
other than the consideration of the charges among the employer-members without
the Union's participation in the making of the decision thereon. While the evidence
indicates that there was an earlier case, referred to above, involving one Eugene
Bonds there is no indication that the Union had knowledge of the action of the
Joint Board in assessing the $50 fine against Ferguson, and the evidence plainly indi-
cates that the Union does not participate in cases involving employer-members
Furthermore, while it is true that the charge in the Bonds case was apparently
based upon Ferguson's actions in permitting Bonds to work without a working per-
mit or a union card, the Ferguson officials were not clear as to what they were found
guilty of. Also, as pointed out above, the Union had previously pointed out to
Ferguson that it regarded Hinnah as a Ferguson employee who was neither a mem-
ber of the Union nor working under their jurisdiction. This must strongly suggest
the conclusion that the Union had no reasonable expectation that its use of the words
"not a member or working under our jurisdiction" would have any different signifi-
cance in the May 21, 1964, communication than they had in the October 12, 1963,
communication.
There is also the necessity of taking into account the apprenticeship program
which appears to have been conducted as a joint arrangement of the contractors and
the Union for a number of years with apparently some lessening of the schoolroom
instruction in later years. The communication of the Union to the Joint Arbitra-
tion Board was at least as referable to Hinnah's apparently disrupting the regular
apprenticeship arrangement as it was to his lack of membership in the Union. There
is no union-security arrangement here and the evidence does not indicate that there
were any exclusive union referral arrangements.
It may be that Ferguson discharged Hinnah out of some vague trepidations that
"union trouble" might follow, but the Union cannot be held responsible for such
consequences of its letter when the evidence does not preponderate in favor of the
conclusion that the Union even knew that that result would follow or reasonably
expected and intended that it would follow.
The General Counsel calls upon the Examiner to make a sophisticated appraisal
of the factual pattern. But sophistication is no substitute for evidence and unfair
labor practices must be found upon basis of the preponderance of the evidence in
the record considered as a whole. In the instant case there are too many gaps, too
many possible alternate inferences equally reasonably to be made to say that the
evidence preponderates in favor of the conclusion that the unfair labor practice
alleged in the complaint has been committed.
As noted above Nally's complaint voiced to Hmnah on the occasion of Nally's
May 20 visit to the Bellerive project was not based on Hinnah's working without a
permit, but on his performing marble, apparently as distinguished from tile, setters
work. In this connection it is significant that the collective bargaining introduced in
evidence is quite careful in its definition of "tile," apparently for the purpose of
excluding marble. Furthermore, the communication handed to the Joint Board on
May 21 appears to have been coincident in time with the airing of a dispute over
sharing of the work not shown to be related to union membership or possession of a
BRICKLAYERS, MASONS, & PLASTERERS ' INT'L LOCAL 18 171
union work permit. Finally it is of considerable significance that at all times Hinnah
was at work there were also employed a large number of tilesetters who were mem-
bers of the Union and who worked alongside Hinnah without contention.
In Southeastein Plate Glass Company, A Division of Automobile Glass Company,
Inc., 129 NLRB 412, the shop steward of the respondent labor organization warned
the employer that it would not be safe for members of the Union to work with the
charging party on union jobs inasmuch as they would be subject to fine. When the
charging party was subsequently discharged after reporting for work on a union job
for the asserted reason that the union was after the employer , the Board inferred
that there had been a constructive request made Southeastern Plate Glass is unlike
the case at bar since it involved a direct threat to the employer of economic loss
unless the charging party's employment was terminated . Furthermore , it appeared in
the Southeastern Plate Glass case that the charging party had fallen out of good
standing with the union and that the union and the employer operated under virtual
closed-shop provisions with a working permit system . In the instant case it quite
plainly appears that employment is not dependent on membership in the Union or
on the possession of a work permit.
Westwood Plumbers, 122 NLRB 726, is also clearly distinguishable from the case
at bar, inasmuch as the finding of the union 's unfair labor practice there was clearly
based upon official union notification to the employer that union men would not
work with Deem , the discriminatee . By contrast in the case here, evidence is unmis-
takable that not only was there a complete absence of threats to withdraw union
men from Ferguson , but Ferguson at all times maintained a full complement of union
setters and apprentices.
The Booth and Flinn Company case, 129 NLRB 867, is also clearly distinguishable
from our present case inasmuch as it involved the situation in which the employer
had delegated to the area local union hiring authority for cement masons, and there
could be no doubt but that the outside local caused directly and immediately the
loss of employment of the individual involved by forwarding a bill of particulars
against the individual to the area local.
In Animated Displays Company , 137 NLRB 999, the Board's finding that the
union caused the discharge in question was bottomed specifically upon a finding
that the union 's discharge request was backed by a threat to pull the employee's
card and that this occurred in the context in which the union members were "milling
around the shop in protest against the situation ." Animated Displays also empha-
sizes that the reason for the union 's action was the membership of the employee in
question in one particular labor organization rather than another with the result
inevitable that the union 's act in causing the discrimination encouraged membership
in the one organization and discouraged that in the other.
On the entire record in this case it cannot be concluded either that the Union caused
Ferguson to discharge Hinnah or that his discharge, or layoff, in any conceivable way,
encouraged or discouraged membership in the Union or any other labor organization.
See Local 60 , International Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (Gouverneur Iron Works, Inc.), 149 NLRB 316.
With respect to the matter of the independent violation of Section 8 (b) (1) (A)
in the admitted refusal of Nally to issue a work permit pending disposition of the
unfair labor practice charges, the same result must be reached Hinnah had worked
for some 10 months without a work permit . There is nothing in the collective-
bargaining agreement requiring a work permit or Union approval . The provisions
of Section 8(b) (1) (A ) relate to restraining or coercing employees in the exercise of
their rights under Section 7 of the Act . These rights include the right to refrain
from assisting labor organizations , collective bargaining , and concerted activities for
mutual aid and protection. The evidence here leaves no doubt in the Examiner's
mind but that Hinnah was denied a work permit by Nally because he filed charges.
As to this aspect of the case, the General Counsel relies on International Associa-
tion of Bridge , Structural & Ornamental Iron Workers, AFL, Local Union No. 84
(Buie Building Materials Company), 112 NLRB 1059, and Fox Midwest Amusement
Corporation , et al., 98 NLRB 699. In the Iron Workers case, the Board found an
unfair labor practice under 8 ( b) (1) (A) in the union's threat to the charging party of
a loss of good standing in the union if he gave a statement to the Board. It clearly
appears from the Board 's opinion that the basis of its finding was the clear connection
on the facts of the case between loss of good standing and future job opportunities.
In the present case however, the evidence abundantly indicates that membership in
the Union , or possession of a work permit , is by no means a condition of employment.
Fox Midwest Amusement Corporation is not essentially different in that the
Board's finding of an unfair labor practice under Section 8(b)(1)(A) consisted of
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a threat to take a member 's card away if he furnished a statement to the Board
agent . This the Board found equivalent to a threat with respect to his employment
security . These cases are not persuasive much less controlling here.
Section 8 (b)(1)(A) cannot be regarded as an analogue of Section 8 (a)(4).
I conclude that the allegations of the complaint have not been sustained.
CONCLUSIONS OF LAW
1. Ferguson is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent is a labor organization within the purview of Section 2(5) of the
Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law and upon
the entire record in this case , it is recommended that the complaint be dismissed.
American Casting Service, Inc. and International Molders' and
Allied Workers' Union of North America , AFL-CIO , Petitioner
American Casting Service, Inc. and International Molders' and
Allied Workers' Union of North America , AFL-CIO. Cases
Nos. 25-RC-2525, 25-RC-2536, 25-CA-1877, and 95-CA-1878.
February 18, 1965
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTIONS
On November 16, 1964, Trial Examiner Frederick If. Reel issued
his Decision in the above-entitled proceeding finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. The Trial Examiner also found that
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of these allega-
tions. He further found that the Union's objections to the elections
in Cases Nos. 25-RC-2525 and 25-RC-2526 should be sustained and
recommended that the elections be set aside. Thereafter, Respond-
ent filed exceptions, with a supporting brief,' to the Trial Examiner's
Decision. The General Counsel filed a brief in support of the Trial
In its brief Respondent also filed a motion to dismiss the represention matter as
moot . In support thereof, Respondent alleges that it has entered into an agreement
with another party for the lease of its Princeton , Indiana, facility , with an option to
purchase at the end of 3 years ; and that under the terms of this agreement the Princeton
plant, which is presently closed for retooling and repairs , will reopen under the exclusive
management of the lessee and at such time , the Owensboro plant will cease operations as
a foundry . Even assuming the truth of these allegations, we perceive no reason for
denying the employees the right to choose a collective -bargaining representative , if they
so desire . Accordingly , the motion is denied.
151 NLRB No. 23.