Charles Hart and Local 450

National Labor Relations Board - Board Decisions

Jul 18, 1955

113 N.L.R.B. 213 (N.L.R.B. 1955)

CHARLES HART AND LOCAL 450 213
reinstatement is made by Respondent , less his net earnings 9 to be computed on a
quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB
289. Earnings in one particular quarter shall have no effect upon the back -pay lia-
bility for any other such period. It will be further recommended that Respondent
make available to the Board and its agents , upon request , all payroll records, time-
cards, and other records necessary to compute the back pay herein awarded.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent , Metco Plating Company, is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Local No. 1, International Union, Metal Polishers , Buffers, Platers, and Help-
ers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act ad-
mitting to membership employees of Respondent.
3. By discriminatorily discharging Gordon E. Brooks because he participated in
a concerted work stoppage with other employees for the purpose of collective bar-
gaining or other mutual aid or protection , thereby discriminating in regard to hire
or tenure of employment or other terms or conditions of employment , to discour-
age membership in a labor organization , and thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent , Metco Plating Company, engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (1) and ( 3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
9 See Crossett Lumber Company, 8 NLRB 440 , 497-8.
Charles Hart and Local 450, International Union of Operating
Engineers , AFL and Ernest H. Liles. Case No. 39-CB-69. July
18,19.55
DECISION AND ORDER
On February 28, 1955, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents, Charles Hart and Local 450, International Union of
Operating Engineers, AFL, herein called Local 450, had not engaged
in any unfair labor practices and recommending that the complaint
be dismissed, as set forth in the copy of the Intermediate Report at-
tached hereto.
On May 5, 1955, the Board denied the General Counsel's motion to
reopen the record on the basis of newly discovered evidence which was
not particularized. Thereafter, on May 9, 1955, the General Counsel
renewed the motion, alleging specifically that the newly discovered
evidence consists of a letter drafted by a duly authorized representa-
tive of Local 450 on April 1, 1955, subsequent to the hearing herein ;
that the letter allegedly states that a representative of Local 450 re-
quested Ernest H. Liles, the Charging Party, not to work on the job
on which he was then working and that this request covers the same
work involved in this proceeding. The General Counsel asserts that
113 NLRB No. 24.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such evidence contains an admission by Local 450 of facts alleged by
the General Counsel and denied by the Respondents, and as such con-
stitutes material documentary proof supporting testimony offered by
him and directly contradicting testimony offered by two of the Re-
spondents' witnesses. On May 19, 1955, the Respondents filed a reply
in opposition to the motion.
The credited testimony in the record indicates that the Respondents
urged Liles, the Charging Party, not to continue working on the job
involved herein. It thus appears that the evidence now offered by
the General Counsel would, at best, be cumulative of the testimony
already in the record, and, therefore, not material. Even assuming
such evidence were not cumulative, there is no showing by the General
Counsel that such evidence in fact directly conflicts with the testimony
of the Respondents' witnesses. Thus, no basis exists for reversing the
Trial Examiner's credibility resolutions. Accordingly, the General
Counsel's motion to reopen the record is denied.
The Board has reviewed the rulings made at the hearing and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the Labor Management Relations
Act of 1947, 61 Stat . 136 (herein called the Act), was heard in Houston , Texas,
on January 11 and 12, 1955, pursuant to due notice to all parties . The complaint
issued on October 24, 1954, by the General Counsel of the National Labor Relations
Board 1 based on charges as amended , duly filed and served, alleges that the Respond-
ents, Local 450, International Union of Operating Engineers , AFL, herein called
the Union, and its business agent, Charles Hart, have restrained and coerced
Ernest H. Liles, an employee of American Construction Company, herein called
the Company, in the exercise of the rights guaranteed under Section 7 of the Act,
in violation of Section 8 (b) (1) (A) thereof. The answer of the Respondents
denies the commission of any unfair labor practices.
All parties were present at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce relevant evidence,
to argue orally and to file briefs. Thereafter counsel for the Respondents sub-
mitted a brief which has been duly considered.
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 COMPANY 'S BUSINESS
The parties stipulated that the Company , a Tennessee corporation , maintains its
principal office at Houston, Texas , where it is engaged in the general construction
business. In the course of its operations the Company , during the period January 1,
to December 31, 1954, purchased various building materials , such as brick, terra
1 The General Counsel and the staff attorney appearing for him at the hearing are
referred to as the General Counsel , and the National Labor Relations Board as the Board.
CHARLES HART AND LOCAL 450 215
cotta, steel , windows, doors , and glazed tile from places outside the State of Texas,
which purchases amounted to approximately $ 1,100,000. In the same period the
Company provided and supplied services to major oil companies located within the
State, including Humble Oil Company, Union Oil Company, and The Texas Company,
which services were valued in excess of $1,000,000 , $ 100,000, and $ 1,000, respec-
tively. The Trial Examiner finds that the Company is engaged in commerce as
defined in the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 450, International Union of Operating Engineers , AFL, is a labor organiza-
tion as defined in the Act. At all times material, Charles Hart was employed as one
of the business agents of the Union.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background of the Case
James P. Miller testified the Company commenced construction of a high school
at Bellaire, Texas, some 5 miles from Houston, about January 3, 1954, that the
project was still in progress at the time of the hearing herein and that he has been,
and is, construction superintendent of the job.
Harry Duckett, vice president, stated the Company is a member of Associated
General Contractors and Associated Industrial Contractors, which associations
negotiated and executed a collective-bargaining agreement with the Union on behalf
of the Company covering engineers and related classifications, effective for the
period July 1, 1954, to July 1, 1955. The agreement provides that the Company
recognizes the Union as a source of skilled manpower and "will use it as a source
when in need of employees." In turn, the Union agrees, when requested, to exert
every effort to supply skilled men The agreement further provides for a union
steward on the job, who "shall be the last man laid off, provided that in the opinion
of management he is qualified to do the work available." The events herein
occurred in connection with the Bellaire High School project during August 1954,
while the foregoing contract was in effect.
The Issues
The complaint alleges that the Union, through Hart, on or about August 19,
threatened Liles with physical violence if he reported for work for the Company
and refused to refer him to the job; about August 23, threatened Liles with loss
of referrals to all jobs in the area and with loss of his union membership if he
did not leave his job; and about August 26, again threatened Liles with loss of union
membership if he did not leave his job with the Company. All of the foregoing
acts were directed against Liles because he refused to assist the Union in concerted
activities which refusal was not affected by any agreement requiring membership
in a labor organization as a condition of employment as authorized in Section 8 (a)
(3) of the Act and, therefore, in violation of Section 8 (b) (1) (A) thereof. The
Respondents entered denials to the foregoing allegations.
The General Counsel's Case
Liles, a licensed engineer and a member of the Union since 1947, stated he was
employed by the Company about March 1954 as steam hoist or steam rig operator.
At the time of his employment A. C. Pickens, a member of the union, was also on
the job as bulldozer operator, acted as union steward and both continued to work
until about noon August 11, when Pickens was discharged. Liles related that Pick-
ens called him the same evening and informed him that in accordance with Hart's
instructions he was to report at the union hall the following morning After this
conversation Liles said he called Hart but being unable to reach him, then telephoned
Earl Ford, another union business agent, and advised him of his talk with Pickens.
Ford confirmed the fact that Hart wanted him at the hall the next day and Liles
promised to be there. Accordingly, Liles reported at the union hall on the morning
of August 12, where he met Ford and inquired if Hart was ready to see him. Ford
said that Hart was busy and unable to see him so Liles asked about returning to
work and Ford told him, "You are not going to work because Charlie [Hart] said
you wouldn't go to work until Pickens went back to work." Liles did not work for
the next 6 days during which time he simply "sat up" at the union hall. About
August 18, Liles met Hart, Ford, and Pickens at the hall at which time Hart stated
379288-56-vol 113-15
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he understood Liles had received a call from Miller and wanted to go back to work
but that he should not do so. Hart explained that Miller had been wrong in dis-
charging Pickens, that the Union was trying to straighten out the matter but Liles
"did not want to go along" with them. Hart accused Liles of "crying on the con-
tractor's shoulder" and telling Miller that he had been "pulled off" the job Liles
admitted he told Millei he had been ordered off the job when the latter asked why
he had not reported for work. Hart replied that if he returned to work "we will
make it plenty hard for you " Liles charged Hart with having told Miller that he,
Liles, "wasn't any good" as an operator, that he had laid off the best man and that
he did not "appreciate" such remarks. Hart thereupon invited Liles to settle the
matter then and there but Liles told him he did not come to the meeting to fight.
Other words passed between them and then Hart suggested that Pickens go back to
work, but Pickens declined for the reason that the Company needed a steam engineer
and he was not qualified for the job. Hart, after mentioning that both men should
go back to work, admitted he had been a "little mad" and told Liles, "you just make
up your own mind as to whether you go back to work or not." The meeting then
concluded. Liles admitted that no mention was made of a referral card on this
occasion. Liles considered the matter and reported on the job the next morning.
About 3 days later or August 23, Hart and Homer C. Pierce, business manager of
the Union, came to the job and Hart told him, "you don't look good, I would advise
you to get sick." Liles answered he was not sick whereupon Hart, after repeating his
suggestion , declared, "I would advise you to leave the job or I will not be responsi-
ble for what the Executive Board will do to you." Hart concluded by saying that
Liles would not be able to work for the Company or any other employer "without
a card " Pierce and Hart mentioned that a picket had been placed at the Com-
pany's job for Humble Oil Company in Houston 2 and when Hart asked Liles if he
knew he was working behind a picket line, he answered in the negative. Pierce
remarked that Liles would not go along with them, so he and Hart left the job.
Liles continued to work. Around that time the Union, in response to Miller's re-
quest, sent J. P. Jordan to the job to operate the bulldozer Jordan worked about
a day and a half when he was laid off. Around or after the above visit by Hart and
Pierce, Hart telephoned Liles one evening about August 21, and informed him that
some of the painters had asked him when he was going "to get them rats off the
job" and "You can take that as it is " Hart told Liles not to report for work the
following morning and when Liles said he intended to do so, Hart warned, "You go
back out there I am going to take your book." Liles replied Hart was not "big
enough" to do that and when Hart cursed him he hung up the telephone. Liles
went to work the next morning, but around 1 o'clock he told Miller he had been
ordered to stay off the job so he was leaving. Later, Liles admitted he left the job
because it was raining although he did inform Miller of his conversation with Hart
the previous night. The same afternoon Liles went to the union hall but he did not
see Hart or any union officials nor did he advise anyone that he had left the job.
On direct examination Liles said he was off the job until about August 29, but on
cross-examination he admitted he was off only 2 days when Hart called him into
the union office and advised that Miller wanted him back on the job. Hart told
Liles he did not even know he had been off and when Liles said he had been off
for about 2 days Hart remarked that he was a "little too late." Liles then asked
Hart if he could have a referral card to the job but received no answer to his re-
quest. Later that day he asked Ford for a referral card and he stated he did not
need one. When Liles said he would like to have a card Ford repeated he did not
need one. Liles went back to work the next day and has been continuously em-
ployed by the Company since that date.
Sometime in the latter part of August, seemingly around the 27th, Liles received
a letter from the Union stating that charges had been preferred against him by
H. D Mayfield,3 union president, but, according to Liles, since the Union adopted
the "wrong procedure" he did not appear before the executive board Subsequently,
he received another letter restating the charges. Thereafter, on August 30, Liles
filed charles with the Board against the Union and Hart,4 and on some undisclosed
2 The picket was placed at this job around noon of August 11
3 These charges were of a general nature and were filed under article XXIII, subdivision
7, subsection 7 (e) of the constitution of the International Union, which specifies many
giounds for fine, suspension, or expulsion of union membeis.
4 The original charge alleged a violation of Section 8 (b) (1) (A) and (2) of the Act
while the amended charge filed on October 11, alleged violation only of Section 8 (b)
(1) (A).
CHARLES HART AND LOCAL 450 217
date also filed charges with the Union against Hart. Liles admitted that he discussed
all these charges with Mayfield and on October 23, gave Mayfield the following
written statement:
I want you to state the reason why you are dropping said charge against me.
Because E. H. Liles is willing to withdraw said charges against Charley Hart
and Local 450.
(Signed) E. H. LILES.
In explanation as to which charges he was talking about Liles testified that he was
"referring to both charges, if he would do lust what I asked him to do, and he didn't
do it." Liles concluded by stating the charges against him were withdrawn and he
understood his union charges against Hart were "dropped."
Miller testified that he discharged Pickens on August 11 because his work was
unsatisfactory. The same afternoon Hart telephoned Miller and complained that
he could not fire Pickens because he was the union steward. Miller replied he had
the privilege of discharging any employee if his work was unsatisfactory and, in
addition, stated he did not need anyone on the bulldozer but required a licensed
engineer who could operate the steam hoist as well as the bulldozer, water pump,
and air compressor, and that Liles was qualified to perform all those jobs. Hart said
that Liles was not a very good operator and ended the conversation by stating he
would talk to Pickens and discuss the matter later. The next day, Hart returned
Miller's call and when Miller said he wanted Liles back he stated he did not know
what Miller was talking about. Miller explained that Liles had told him he had
been pulled off the job and Hart commented "Liles talked too much." Hart then
advised Miller he could not have Liles or any other engineer on the job until Pickens
was rehired. Miller would not agree and Hart said, "That's the way it lays." Miller
asked if he was going to take care of his engineering and Hart replied, "I will hire
them and fire them." On August 13 or 14, Miller called Hart to find out whether
the picket line at Humble Oil Company had anything to do with the Bellaire project
and Hart assured him it had nothing to do with his job; that the picket was placed
at Humble at 12:59, the afternoon of August 11, and Pickens was discharged at
11:30 that morning. Miller stated that Liles was away from work for 8 days (includ-
ing Saturday and Sunday) and returned to the lob around August 20. Liles worked
for about 5 days when he told Miller he better leave the job until he obtained a
referral card from Hart. Liles was off for a day and a half when Miller called Hart
and asked that he be sent back to work. Hart said that as far as he knew Liles was
on the job. Miller repeated that Liles was not working, that he would like to have him
back and that he was at the union hall. Hart commented that perhaps Liles did
not want to work for the Company and that while he had not seen him at the
hall he would look for him. A few minutes later Liles came to the phone and
Miller, after briefly informing him of his conversation with Hart, asked Liles if he
wanted to return to work. Liles said he wanted to come back, so Miller told him
to report the next morning, which he did, and he has been working ever since
Pickens was never rehired. However, about 3 weeks after his discharge Miller needed
a bulldozer operator so he called the union hall and requested that Jordan be sent
out. Joidan reported, worked for a day and a half and apparently left after re-
ceiving a telephone call from Hart.
The Respondents' Case
Hart, business agent and assistant business manager of the Union, stated that Ford
was in charge of the Bellaire project and one morning informed Hart that Pickens
had been discharged and desired to discuss the matter with them. Ford, Pickens,
and Liles then came into Hart's office. Hart could not remember the date of the
meeting but fixed it as taking place the morning after Pickens' discharge, which
would be Thursday, August 12. Pickens claimed he had been discharged because he
had "persisted in trying the keep the job straight" and while he did not point out
any particular incident which may have caused his termination he did state that
the Company had been operating without oilers and mentioned that one of the union
members, McClanahan, had been running a crane without an oiler. While Hart
said he asked Liles something about the matter he did not relate the conversation
or the subject discussed. Hart suggested that both men go back on the job and, after
an argument between him and Liles, Hart told Liles "to go back out on the job, I was
leaving it up to him." The meeting then concluded.
Hart and Pierce went to the job on Thursday, apparently August 19 or 26, for
the purpose of checking a rumor that McClanahan was operating without an oiler
and on this occasion they passed by Liles, who was running the steam hoist, as they
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entered and left the property. Hart said he merely spoke to Liles as they came in
and denied that he or Pierce had any conversation with him.
In the meantime, Hart had heard nothing further concerning the meeting of
August 12, until sometime the following week when Miller telephoned and re-
quested that Liles be sent back on the job. Hart replied that as far as he knew
Liles had been on the job. Miller then asked to speak to Liles and Hart went into
the hall where he found Liles and called him to the office phone. Hart left im-
mediately and did not overhear any of the conversation. This was the only tele-
phone conversation Hart had with Miller and he denied he told Miller that Liles did
not want to work for him. Hart had not seen Liles at the union hall for several
days prior to Miller's call and stated if he had been at the hall for any appreciable
time subsequent to August 12, it would have been called to his attention. Hart
denied that he had any telephone conversations with Liles and denied that Liles
ever asked him for a referral card during the period in question.
Sometime in the latter part of August, Hart reported to the union executive board
that Liles "had violated the oath" and as a result the president preferred charges
against him and notified him of the same by letter. Thereafter, Liles filed charges
with the Board and the Union. On October 23, Liles appeared for trial before the
executive board and at that time Mayfield reported that Liles had agreed to withdraw
the charges he had filed with the Board and the Union, if the Union dropped the
charges against him. Liles then gave the Union the written memorandum set forth
above and both union charges were withdrawn.
Pickens, a member of the Union for a number of years, had been employed pre-
viously by the Company on various other jobs and worked on the Bellaire project
from February to August 11. During the period of his last employment Pickens
operated the bulldozer and when there was no dirt to be moved was assigned
primarily to running the air compressor or water pump. He also acted as union
steward on the job and participated in the settlement of two jurisdictional disputes
with other crafts and at times had discussions with Miller regarding the employment
of oilers.
Pickens related that on the morning of August 11, Miller stated they were out
of dirt and he would have to lay him off for 2 or 3 days Miller further stated
that Pickens had been too friendly with the men, that he kept them from working,
and talked too much. Pickens admitted he had caught up with the dirt moving
but that there were odd jobs available which he could do. Following his termina-
tion Pickens went home and then went to the union hall but was unable to see any
of the officials except the recording secretary. The same evening Pickens called
Ford and informed him that he had been discharged and since he was the steward
he thought the wrong man had been laid off. Ford replied, "You all or you
better come to the Hail " Pickens believed it was necessary to have Liles present so
he telephoned him and told him they should go to the hall the next morning to
get the matter straightened out, which was satisfactory to Liles. Accordingly, Hart,
Ford, Liles, and Pickens met at Hart's office on August 12. Liles, as stated by
Pickens, declared he was being discriminated against because of Pickens and since
he was anxious to return to work he should be permitted to do so at once and not
be required to wait until some settlement or decision was made in the matter. Hart,
Ford, and Pickens stated that Liles should not return to work until Pickens was
put back on the job whereupon Liles and Hart became involved in an argument,
in the course of which "both get pretty hot." Finally, Hart apologized and stated
he would not tell Liles what to do, that he could go back to work if he so de-
sired. Pickens was certain that Liles asked Hart for a referral card but Hart
told him he was already on the company payroll and could return to work without
a card The meeting then ended.
Pickens did not believe Liles returned to the job on Friday or Saturday, August
13 or 14, for he saw him at the union hall on two occasions "during that week,"
seemingly the same week in which the discharge and the meeting took place.
Sometime following the meeting, Hart informed Pickens he was working on the
matter but when Pickens obtained other employment the dispute was apparently
dropped
Ford testified that Pickens called him one evening in regard to his discharge
and he suggested that he come to the hall the following morning, August 12.
He denied that he ever requested Liles to come to the hall or that he had asked
Pickens to have Liles present. On the above date Liles approached Ford at the
hall to inquire why Hart wanted him and Ford explained that they, together with
Pickens, would confer with Hart as soon as he was free. The group then met
with Hart and Liles immediately asked the reason for his being there. Ford did
not state whether any explanation was offered to Liles but they then discussed
CHARLES HART AND LOCAL 450 219
Pickens' layoff, with Pickens asserting he had been discharged because he had
carried out his functions as union steward. In the course of the discussion Ford
and Hart expressed the opinion that Pickens should be reinstated on the job. Liles,
according to Ford, wanted to finish the meeting quickly so he could return to work
and exhibited no interest in the discussion, other than going back on the job. In
substance, Hart asked Liles if he thought he was doing right by wanting to go back
to work when the Union had a dispute with the Company at the Humble Oil
Company job. This led to a heated argument between Liles and Hart which con-
cluded with Hart telling Liles he could go back to work if he wanted to. The
meeting then ended.
Ford said he saw Liles at the hall the next day but he could not recall seeing
him the following week since he spent most of his time in the field. Ford stated
that as far as he knew Liles returned to the job as his name never appeared on
the "but of work list," which is a record of unemployed members maintained at the
hall.
Ford related that Liles came to the hall 1 afternoon, at least I week after Pickens'
discharge, and asked for a referral card to the Bellaire job. Ford told him he was
still employed on that job and did not need a referral card. Liles repeated his
request 2 or 3 times but Ford refused to issue a card because it was not neces-
sary.
Pierce, union business manager and in charge of the business agents, stated that
on one occasion he accompanied Hart to the Bellaire job for the purpose of check-
ing a report that the crane operator was working without an oiler. As they walked
through the building Pierce saw Liles at work and Hart simply spoke to him.
Pierce denied that he or Hart engaged in any conversation with him and Pierce
specifically denied making the statements related by Liles. Pierce said he and
Hart briefly talked to McClanahan, the crane operator who was employed by a
subcontractor, concerning the employment of an oiler and then left the job.
Pierce acted as prosecutor of the charges filed against Liles and just before the
matter was to be tried at a general meeting of the membership, Mayfield informed
him that, in the best interests of organization, both he and Liles desired to drop
all pending charges and asked if he had any objection thereto. Pierce said he
had no objection whereupon Mayfield announced to the membership, there were
about 500 men present, that the Union was dropping its charges against Liles.
Concluding Findings
The evidence establishes that the Company had two members of the Union in its
employ in August, namely, Liles and Pickens, the latter being the union steward on
the job. On August 11, Miller discharged Pickens because his work was unsatis-
factory and he no longer needed a bulldozer operator. Miller retained Liles since he
was a licensed engineer, Pickens was not, and was qualified to run the steam hoist as
well as operate the bulldozer and perform other jobs that Pickens could do. At that
time the Company and the Union were operating under an agreement which provided
that the steward would be the last man laid off if, in the opinion of management, he
was qualified to do the work available. After his layoff, Pickens called Liles the
same evening and requested him to be at the union hall the next morning, August 12,
to discuss his discharge. Liles went to the hall on August 12, but from that point
forward the evidence is sharply conflicting as to subsequent events, especially as to
the dates of their occurrence.
It is undisputed that Hart, Ford, Pickens and Liles met at Hart's office for the
purpose of discussing Pickens' discharge. However, Liles fixed the date of the meet-
ing as August 18, while Hart, Ford, and Pickens said it took place on August 12.
Having closely observed Liles as a witness and listened to his testimony concerning his
anxiety to return to work immediately, the Trial Examiner finds it extremely difficult
to believe that he would have remained idly at the union hall for 6 days without even
attempting to contact Hart or Ford in an effort to resolve the matter, other than his
brief conversation with Ford on the morning of August 12. Again, while Miller
stated he had three telephone conversations with Hart between August 11 and 14,
which Hart denied, his testimony did not touch upon the subject of the meeting or
the date thereof.5 Since the complaint does not allege that the Respondents unlaw-
GThe Trial Examiner believes thlt Miller talked to llait on August 11, but the conver-
sation amounted to no mole than Hait's complaining about Pickens' discharge and promis-
ing to discuss the matter after talking to Pickens The Tiial Examiner also believes that
Hart and Miller conversed on August 12, and that I-Tart probably reniaiked that Miller
could not have Liles or anyone else until Pickens was rehired Since Liles did return to
work quickly, without Pickens, and Jordan was sent to the job at Miller's request, the
statements have no importation bearing upon the issues herein
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully removed or ordered Liles from the job on August 12, or prevented him from
working until about August 19, it cannot be said that Liles was restrained or coerced
in the exercise of the rights guaranteed him under the Act merely because he was
off the project for 6 days. Moreover the unfair labor practices are bottomed ex-
clusively upon alleged acts and conduct of the Respondents directed against Liles sub-
sequent to the initial cessation of employment, specifically, threats of physical violence
and economic reprisals "if he reported for work" and, after he did return to work,
threats and warnings of economic sanctions "if he did not leave" his job. In view
of the issues as framed by the pleadings the Trial Examiner is of the opinion that
the primary question to be decided is what transpired at the meeting, rather than
the date thereof. Consequently, the Trial Examiner will assume that the meeting
took place on August 18, although if that point was material he would find, on
the basis of the conflicting evidence, that it actually occurred on August 12.
With respect to the meeting, Liles related that Hart declared Miller was wrong in
discharging Pickens and that Liles instead of cooperating with them in their efforts
to settle the matter insisted upon returning to work immediately. Hart also accused
Liles of informing Miller that he had been "pulled off" the job and warned that
if he went back to work, "we will make it plenty hard for you." In turn Liles ac-
cused Hart of telling Miller that he was not a good operator and that he had laid off
the best man. A heated argument ensued in the course of which Hart challenged
Liles to fight but he answered he did not come to the meeting for that purpose. After
the argument subsided Hart suggested that Pickens return to the job but he declined
because he was not a licensed engineer. Hart then suggested that both men go back,
which was agreeable to Liles. However, Hart admitted he had been mad and told
Liles to "make up your own mind as to whether you go back to work or not." The
meeting thereupon concluded. Liles did not ask for a referral card on this occasion
and returned to work the next day.
In substance, Hart, Ford, and Pickens testified that the group discussed Pickens'
discharge, which was purportedly caused by reason of his activities as steward, and,
as stated by Ford and Pickens, their group expressed the opinion that Liles should
not return to work until Pickens had been reinstated. Hart testified that he sug-
gested both men go back to work. All of these witnesses agreed that Hart and Liles
became involved in a heated argument which ended with Hart advising Liles to go
back to work if he so desired.
From the foregoing testimony the Trial Examiner concludes and finds that the
meeting was held in order to discuss the circumstances under which Pickens was dis-
charged and, in view of the terms of the existing collective-bargaining agreement,
there was certainly nothing objectionable to this procedure on the part of the Union.
It is clear that Liles was desirous of returning to work at once without awaiting any
determination of the matter and that Hart, Ford, and Pickens assumed the position
that he should not do so but wait until Pickens or both of them could go back to
work. The Trial Examiner entertains no doubt whatever that Hart and Liles ex-
changed accusations of a personal nature, as described by Liles, and that they be-
came embroiled in a heated argument in which strong language was used including
an offer by Hart to fight Liles. Had the affair ended at that point there might be
grounds for believing that Hart's challenge was motivated by a desire to restrain
Liles from returning to work under threat of physical violence, rather than an angry
remark uttered in hot argument, and that he directed statements of a coercive char-
acter against Liles. However, all the witnesses uniformly testified that when the dis-
agreement ceased Hart apologized for his conduct and expressly told Liles to go to
work if he so wished and the meeting terminated on that note. Accordingly, Liles
returned to the job the next morning.
Under Section 8 (b) (1) (A) it is an unfair labor practice for a labor organization
or its agents to restrain or coerce employees in the exercise of their rights guaranteed
in Section 7, and the intent of the proscription as stated by the Board in Miami Cooper
Company, 92 NLRB 322, 324, is "to eliminate physical violence, intimidation, and
threats of economic action against employees. Where the union's conduct involved
violence, threats thereof, or related conduct, or where the union had obtained or was
attempting to obtain economic discrimination against particular employees, we have
found such conduct proscribed by Section 8 (b) (1) (A)."
Here, Hart's threatening statements to Liles were quickly repudiated and, as
evidenced by the manner in which the parties concluded the meeting, any coercive
effect they may have carried was unequivocably eliminated by his subsequent action.
The Trial Examiner concludes that the evidence is insufficient to support a finding
that the Respondents violated the Act. In refusing to enforce an order of the
Board finding a violation of Section 8 (b) (1) (A) on the basis of a statement by
a union representative that the employee would have to join the union because it
ti
CHARLES HART AND LOCAL 450 221
had a closed-shop agreement with the employer, the Court of Appeals for the Ninth
Circuit, in N. L. R. B. v. Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 127, 202 F. 2d 671, 673-674, stated:
Even if this isolated incident did occur, to predicate a cease and desist order upon
it is to magnify the inconsequential to the point where the action becomes an
abuse of discretion.
The Trial Examiner therefore finds that the Respondents did not threaten Liles as
alleged in paragraph 5 (a) of the complaint and, as Liles admitted he did not even
request a referral card on or about August 19, the Trial Examiner finds that the
Respondents did not engage in any unfair labor practice as set forth in paragraph
5 (b) of the complaint.
In many respects the testimony bearing upon events occurring after Liles' return
to work is more conflicting than that relating to preceding occurrences. However
the record discloses and the Trial Examiner finds, as stated by Liles and Miller,
that Liles returned to work about August 19 or 20 (Thursday or Friday). There-
after according to Liles, Hart and Pierce came to the job about 3 days later, which
he placed as August 23, at which time Hart advised him to get sick. When he
refused to comply with the suggestion Hart replied he would not be responsible
for any action the executive board might take and that he, Liles, would be unable
to work for the Company or any employer without a union card. Liles also testified
that Hart telephoned him one evening and told him not to report for work the
next morning and if he did so, his book would be taken away. Liles answered
that Hart was not big enough to do that. Liles fixed the date of this conversa-
tion as about August 21, and on cross-examination definitely stated it took place
after Hart and Pierce had visited the job. On direct examination Liles testified
he reported for work the next morning but around 1 o'clock he informed Miller, "I
had been ordered not to come back out. So I pulled off the job again." When the
Trial Examiner asked Liles to relate his conversation with Miller and the circum-
stances under which he left the job, he replied, "Well, actually we were rained
out that day." Liles went to the union hall that afternoon and "just sat there"
without reporting to anyone that he had "pulled off or anything." Liles said he
was off about 2 days and again returned to the job under the circumstances
described below.
Miller testified that Liles came back to the job on Friday, August 20, worked for
5 days and then told him that he better leave the job and get a referral card from
Hart. Liles was off a day and a half when Miller called Hart, sometime after August
23, and requested that he be returned to the job. There is no substantial disagree-
ment concerning this conversation as detailed, above, and Liles came back to work
the following day and has been working ever since that date.
Hart and Pierce denied having the foregoing conversation with Liles at the job
and Hart specifically denied having any telephone conversation with him concern-
ing his continued employment at the project. Hart admitted that Miller called him
around the week following Pickens' discharge and that their conversation was sub-
stantially the same related by Miller.
The Trial Examiner will not attempt to resolve the flagrant conflicts and incon-
sistencies in Liles' testimony for he is convinced that he either made up his story
as he went along or he was hopelessly confused and bewildered concerning these
events. Moreover, he plainly attempted to convey the impression that he was
ordered off the job the second time by Hart and Pierce when they visited the project
or as a consequence of Hart's telephone conversation with him, whenever it might
have been, when in truth and fact he left his employment because it was raining.
The Trial Examiner therefore finds Liles to be an unreliable witness and his testimony
is rejected, except where it happens to be consistent with that of other witnesses.
Hence, the Trial Examiner does not accept his version of the meeting with Hart
and Pierce and credits the testimony of the latter individuals in respect to this
incident. For the same reason the Trial Examiner credits the testimony of Hart and
finds that he did not telephone Liles on or about August 21 and threaten him in
the manner he claimed. On the basis of the credible testimony of Miller, the Trial
Examiner finds that Liles worked approximately 5 days, until about August 26 or
27, when he was off a day and a half and came back to work as a result of Miller's
request to Hart, as set forth above The Trial Examiner further finds on the basis
of the testimony of Miller and Hart that Hart was unaware of the fact that Liles
had left his employment on the second occasion.
Ford admitted that Liles asked for a referral card just prior to his returning
to work the second time and that he refused to issue one because he was already
on the job and it was not essential that he have a card in order to return to work.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the circumstances it is sufficient to say that the issuance of a referral card
was meaningless and it strikes the Trial Examiner that Liles was simply attempting
to be smart or cagey in insisting that he be granted a card.
The Trial Examiner therefore finds that the Respondents did not threaten Liles
with loss of his union membership on or about August 23 and 26 or threaten him
with loss of referrals on or about August 23, as alleged in paragraphs 5 (c), (d),
and (e) of the complaint.
In view of the findings herein it is unnecessary to discuss the cases cited by the
General Counsel, Union Starch Company 6 and Radio Officers, 7 as supporting his
contention that the evidence establishes violations of the Act as alleged in the com-
plaint. Undoubtedly, these cases deal with broad principles involving unfair labor
practices directed against individuals on the part of unions as well as employers but
the facts therein are readily distinguishable from those found in this matter, so it
cannot be said that they may be accepted and applied as controlling authorities in
the present case. The Trial Examiner, for the same reasons, finds it unnecessary to
pass upon the contention of the Respondents that at least certain acts and conduct on
the part of the Union and Hart fall within the terms of the proviso in Section 8 (b)
(1) (A), namely, that the proscription shall not impair the right of a labor organiza-
tion to prescribe its own rules with respect to the acquisition or retention of mem-
bership. Finally, the Trial Examiner attaches no particular significance to the fact
that charges and countercharges were initiated with the Union by Hart and Liles,
other than to complete the chronology of events herein.
Upon the basis of the foregoing findings of fact, and upon the entire record,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of American Construction Company occur in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Local 450, International Union of Operating Engineers, AFL, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
3. The Respondents have not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
6 Union Starch d Refining Co. v N L R B, 186 F 2d 1008 (C A 7), cert denied 342
U S 815
7The Radio Officers' Union of the Conimecial Telegraphers Union, AFL v N. L R. B.,
347 U. S 17.
Pacific States Steel Corporation and United Steelworkers of
America District 38, CIO, Petitioner. Case No. 20-R-1093. July
18,1955
SECOND SUPPLEMENTAL DECISION AND ORDER
On August 31, 1944, following a Board-directed election," the Board
certified United Steelworkers of America, District 38, C. I. 0., herein
called the Steelworkers, as the collective-bargaining representative
of the Employer's production and maintenance employees, excluding,
among others, "employees now represented by" International Union
of Operating Engineers, Local 3, A. F. L., herein called the Engineers.
On May 9, 1955, the Employer filed with the Board a request for
clarification or interpretation of certification, asking the Board to
decide whether the certification of the Steelworkers covers three job
I
:157 NLRB 1084 and 1220.
113 NLRB No. 25.