Construction & General Laborers Union Local No. 639

National Labor Relations Board - Board Decisions

Mar 17, 1961

130 N.L.R.B. 1412 (N.L.R.B. 1961)

1412 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Board or its agents, for examination and copying, payroll records and reports and
all other records necessary to analyze the amount of backpay due.
Having found that the Respondent has unlawfully refused to recognize or to bar-
gain with the Union as the representative of its employees in an appropriate unit, it
will be recommended that the Respondent be required upon request to extend'
recognition to and to bargain with the Union.
In view of the nature of the unfair labor practices found to have been committed
on the record in this case, and of the unfair labor practice found to have been com-
mitted by the Respondent in the immediately preceding unfair labor practice pro-
ceeding, the commission of similar and other unfair labor practices reasonably may
be anticipated. I shall therefore recommend that the Respondent be ordered to
cease and desist from in any manner infringing upon rights guaranteed to its em-
ployees by Section 7 of the Act.
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. United Stone and Allied Products Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. American Aggregate Company, Inc. and Featherlite Corporation are em-
ployers within the meaning of Section 2(2) of the Act.
3. All production and maintenance employees at Respondent's Ranger, Texas,
facility, excluding office clerical and professional employees, guards, and all super-
visory employees as defined in the Act, constitute, and have at all times material to
this proceeding constituted, a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. United Stone and Allied Products Workers of America, AFL-CIO, was on and
since April 1959, and at all times since has been, the exclusive representative of all
the employees in the aforesaid appropriate bargaining unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively in good faith with the Union as the exclu-
sive representative of the employees in the aforesaid appropriate unit, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of-
Section 8(a)(5) of the Act.
6. By discriminatorily changing the conditions, tenure, and terms of employment,
the Respondent has engaged in and is engaging in unfair labor practices within the-
meaning of Section 8(a)(3) and (1) of the Act.
7.. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Construction and General Laborers Union Local No. 639, Inter-,
national Hod Carriers , Building and Common Laborers Union
of America , AFL-CIO [Miller-Karr and Company, Inc.] and'
Tracy D. Elliott
Mid-Ohio Valley Building and Construction Trades Council;.
AFL-CIO, and its agent, Robert L . Ward and Tracy D. Elliott.-
Cases Nos. 9-CB-891 and 9-CB-898. March 17, 1961
DECISION AND ORDER
On October 24, 1960, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in and were not engaging in the
unfair labor practices alleged in the consolidated complaint and rec-
ommending that the complaint be dismissed in its entirety, as set,
130 NLRB No. 146.
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1413
forth in the copy of the Intermediate Report attached hereto. There-
;after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.' The Respondents filed a memorandum in
-support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and
-Jenkins] .
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case. It finds merit in certain of the General Counsel's exceptions
and adopts the findings of the Trial Examiner only to the extent con-
sistent herewith.
Respondent Local is party to a collective-bargaining contract with
the Ohio Valley Builders Exchange, Inc., herein called the Exchange,
which is an association of contractors. The contract between Re-
spondent Local and the Exchange contains a union-security clause
and provisions for an exclusive hiring hall system. The contract is
signed by the Exchange on behalf of its members. The hiring hall
provisions of this contract are posted by Respondent Local on the
glass part of the entrance door to its office.
Miller-Karr and Company, Inc., herein called Miller-Karr, is a con-
tractor operating at a construction site in Belpre, Ohio. Miller-Karr
is not a member of the Exchange, and is not a party to the contract
between Respondent Local and the Exchange. Miller-Karr orally
agreed to accept the hiring hall provisions of Respondent Local's con-
tract with the Exchange. Miller-Karr was given a copy of the con-
tract, but did not post the hiring hall provisions at its jobsite. Nor
did Respondent Local change the posted copy of its contract with the
Exchange to show in any way that the contract, or the hiring hall,
applied to Miller-Karr.
Tracy D. Elliott, the Charging Party, applied directly to Miller-
Karr's construction site for employment as a laborer. On December
9, 1960, Elliott was hired by the job superintendent. When he was
hired, Elliott, upon inquiry, advised the superintendent that he was
not a member of Respondent Local, but that he would try to join.
On December 12, Elliott went to the Respondent Local's office, re-
quested admittance to membership, and offered to pay his initiation
fee in installments. Respondent Local's financial secretary told Elli-
IIn the absence of exceptions to the dismissal of the complaint against Mid-Ohio
Valley Building and Construction Trades Council , AFL-CIO, and its agent , Robert L.
Ward, we adopt, pro forma, the Trial Examiner 's findings , conclusions, and recommenda-
tions in respect to these Respondents.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ott he could not accept partial payment of the fee. He told Elliott
to go back on the job, and said that something would be worked out
about his working for Miller-Karr.
On December 16, Respondent Local's officers visited the construc-
tion site and requested Miller-Karr to discharge Elliott because he
was not "hired through the hiring hall system." This request was
put in writing at the insistence of Miller-Karr. On December 17,
Miller-Karr paid off Elliott. Elliott has not since worked for Miller-
Karr.
The Trial Examiner found that the hiring hall contract between
the Exchange and Respondent Local was a valid agreement, meeting
the standards for hiring hall agreements set by the Board in the
Mountain Pacific case 2 The Trial Examiner also found that Miller-
Karr orally agreed to accept the hiring hall provisions of Respondent
Local's contract with the Exchange on the Belpre construction site 3
The Examiner further found that Respondent Local caused Miller-
Karr to discharge Elliott because he was not hired through the hiring
hall as required by the Exchange contract. However, the Trial Exam-
iner concluded that this action by Respondent Local did not con-
stitute a violation of Section 8 (b) (1) (A) and (2) of the Act, because
the contract itself and the posting by Respondent Local were valid
and proper under the Mountain Pacific standards, supra.
We agree with the Trial Examiner's finding that Respondent Local
caused Miller-Karr to discharge Elliott because he was not hired
through the Local's hiring hall. But we do not agree with the Trial
Examiner's conclusion that by causing the discharge of Elliott, Re-
spondent Local did not thereby violate Section 8(b) (1) (A) and (2)
of the Act. In the Mountain Pacific case, supra, the Board set forth
certain requirements which must be met to establish the validity of
exclusive hiring hall agreements. One of these requirements con-
cerns the posting of the hiring hall provisions of the collective-bar-
gaining agreement.4 So far as Miller-Karr is concerned, the posting
a Mountain Pacific Chapter of the Associated General Contractors , Inc., et el., 119
NLRB 883.
In view of our decision .herein, we do not deem it necessary to decide whether the hir-
ing hall provisions in the Exchange contract were lawful on their face . Accordingly, we
do not pass on, or adapt , the Trial Examiner's conclusions In this respect.
As the complaint did not place in issue the legality of the Exchange contract, or Its
alleged application to the Miller -Karr job, our Order is limited accordingly.
81n view of our decision herein It is not necessary to pass upon whether the oral
acceptance of the contract between Respondent Local and the Exchange by Miller -Karr is
valid and binding . Accordingly , we do not so decide the question , nor adopt the Trial
Examiner 's conclusion in this respect.
Nor do we pass on the Issue whether, had there been In effect a lawful exclusive hiring
agreement between Respondent and Miller -Karr, Respondent could have lawfully secured
Elliott's discharge because he was not hired through the hiring hall.
'The requirement states : "We believe, however , that the inherent and unlawful en-
couragement of union membership that stems from unfettered union control over the
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1415
by Respondent Local of the hiring hall provisions of its collective-
bargaining agreement with the Exchange is inadequate to satisfy the
posting requirements of the Mountain Pacific standards. Miller-Karr
is not a member of the Exchange nor a signatory to its contract with
-Respondent Local. Even assuming arguendo that Miller-Karr could'
orally adopt the hiring hall provisions of Respondent Local's agree-
ment with the Exchange, Respondent Local made no change in its
posted copy of the agreement after the oral adoption which would in
any manner show applicants for employment that the hiring hall pro-
visions applied to the Miller-Karr job.' Thus, an intendment of the
posting requirement-that employees or applicants for employment
be fully informed as to any contractual hiring hall requirement for
obtaining or holding employment-is absent from the posting by
Respondent Local in respect to the Miller-Karr job. Accordingly,
there being in existence no valid contractual hiring hall provision on
which to condition Elliott's employment, we find Respondent Local
violated Section 8(b) (1) (A) and (2) by causing Miller-Karr to dis-
charge Elliott for not having been hired through the Respondent
Local's hiring hall.
THE REMEDY
Having found that the Respondent Local has engaged in and is en-
gaging in certain unfair labor practices, we shall require it to cease
and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. As Respondent Local has dis-
criminatorily caused the discharge of Elliott by Miller-Karr, we shall
order that the Respondent Local notify Elliott and Miller-Karr that
it has no objection to Elliott's employment by Miller-Karr. We shall
also order that Respondent Local make Elliott whole for any loss of
pay he may have suffered by reason of the discrimination against him
by payment of a sum of money equal to that which he would have
earned as wages from the date of such discrimination to a date 5 days
after Respondent Local notifies Elliott and Miller-Karr it has no
objection to Elliott's employment. The backpay is to be computed
in the manner set forth in F. W. Woolworth Company, 90 NLRB 289.
In accordance with our usual practice, the period from the date of the
Intermediate Report to the date of the Order herein will be excluded
in computing the amount of backpay to which Elliott is entitled, be-
hiring process would be negated, and we would find an agreement to be nondiscriminatory
on its face, only if the agreement explicitly provided that :
"(3) The parties to the agreement post in places where notices to employees and appli-
cants for employment are customarily posted, all provisions relating to the functioning
of the hiring arrangement, including the safeguards that we deem essential to the legality
of an exclusive hiring arrangement." 119 NLRB 883 at 897.
5 In the testimony of one of Respondent Local's officials it is even admitted that no
one seeing the posted copy of the hiring hall provisions of the Exchange's contract would
know such provisions applied to Miller-Karr's job, unless he were so told.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of the Trial Examiner's recommendation that the complaint be
dismissed.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Local, occurring in connection with
the operations of Miller-Karr, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
CONCLUSIONS OF LAw
1. Miller-Karr and Company, Inc., is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Respondent Local, Construction and General Laborers Union
Local No. 639, International Hod Carriers, Building and Common
Laborers Union of America, AFL-CIO, is a labor organization with-
in the meaning of Section 2 (5) of the Act.
3. By causing Miller-Karr and Company, Inc., to discharge Tracy
D. Elliott, Respondent Local has engaged in and is engaging in an
unfair labor practice within the meaning of Section 8(b),(2) of the
Act.
4. By causing Miller-Karr and Company, Inc., to discharge Tracy
D. Elliott because he did not obtain employment through the Re-
spondent Local's hiring hall, Respondent Local has restrained and
coerced employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, and has thereby engaged in unfair practices within
the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor- practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Construction and
General Laborers Union Local No. 639, International Hod Carriers,
Building and Common Laborers Union of America, AFL-CIO, its
officers, agents, representatives, successors, and assigns shall :
1. Cease and desist from :
(a) Causing or attempting to cause Miller-Karr and Company,
Inc., to discriminate against Tracy D. Elliott, or any other employee,
in violation of Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) In any other manner restraining and coercing employees in
the exercise of their rights guaranteed in Section 7 of the Act, except
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1417
in a manner permitted by Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Tracy D. Elliott and Miller -Karr and Company, Inc.,
in writing , that it has no objection to the employment of Tracy D.
Elliott by Miller-Karr and Company, Inc.
(b) Make whole Tracy D. Elliott for any loss of pay that he may
have suffered by reason of the discrimination against him by Re-
spondent Local on December 17, 1960 , as provided in the section of
this Decision and Order entitled "The Remedy."
(c) Post at its offices , copies of the notice attached hereto marked
"Appendix ." 6 Copies of said notice, to be furnished by the Regional
Director for the Ninth Region, shall , after being duly signed by a
representative of the Respondent Local, be posted by the Respondent
Local 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. Copies of
such executed notice shall also be returned forthwith to the said
Regional Director for posting by Miller -Karr and Company, Inc.,
said Employer willing . Reasonable steps shall be taken by the Re-
spondent Local to insure that said notices are not . altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order , what steps the Respond-
ent Local has taken to comply herewith.
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE To ALL MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Miller-Karr and Com-
pany, Inc., to discriminate against Tracy D. Elliott, or any other
employee, in violation of Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL NOT in any other manner restrain and coerce em-
ployees in the exercise of rights guaranteed them in Section 7
of the Act, except in the manner permitted by Section 8 (a) (3)
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL make Tracy D. Elliott whole for any loss of pay suf-
fered as a result of the discrimination against him.
CONSTRUCTION AND GENERAL LABORERS UNION
LOCAL No. 639, INTERNATIONAL HOD CAR-
RIERS, BUILDING AND COMMON LABORERS.
UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon duly filed and served charges of Tracy D . Elliott, an individual , herein some-
times called the Charging Party, the General Counsel of the National Labor Rela-
tions Board , herein respectively called the General Counsel and the Board, by the
Regional Director of the Ninth Region ( Cincinnati , Ohio ), issued an order con-
solidating cases and a consolidated complaint , dated April 6, 1960 , in the above-
captioned cases. Copies of said complaint , alleging violations of Section 8(b) (1) (A)
and (2 ) of the National Labor Relations Act, as amended , 61 Stat. 136, 73 Stat.
519, herein called the Act, and notice of hearing thereon , were duly served upon
Construction and General Laborers Union Local No. 639, International Hod
Carriers, Building and Common Laborers Union of America , AFL-CIO, herein
called the Respondent Local or the Local ; Mid-Ohio Valley Building and Construc-
tion Trades Council , AFL-CIO, herein called the Respondent Council or the Council;
Robert L. Ward, herein sometimes called Respondent Ward; Miller-Karr and Com-
pany, Inc., herein called Miller=Karr or the Employer ; and Tracy D. Elliott.
With respect to the unfair labor practices , the complaint alleged essentially that,
about December 17, 1959, at a construction site at the Belpre High School in Belpre,
Ohio, the Respondent Local and the Respondent Council, by and thorough their
respective agents, "Bednarczuk , and Ward and others whose names are unknown to
the Regional Director," attempted to cause and caused Miller-Karr to discharge
Elliott because Elliott was "not a member of the Respondent Local and was not re-
ferred or sponsored by it" for employment.
Two separate answers were duly filed, one for the Respondent Local and the
other for the Respondent Council and Ward. Said answers admitted that all ma-
terial times Robert Ward has been the business agent of the Council , and its agent,
and that Bohdan Bednarczuk has been the business agent of the Local , and its agent.
Both answers denied all of the allegations of the complaint as to the commission of
unfair labor practices, and as to commerce.
Pursuant to notice , a hearing was held on May 16 and 17, 1960, at Marietta, Ohio,
before the duly designated Trial Examiner . The General Counsel ,, the Local, the
Council , and Ward (the latter three will collectively be called the Respondents) were
represented and participated throughout the hearing . Before witnesses were called,
counsel for the Respondents stated on the record that "they have no objection to the
employment by Miller-Karr or any other employer" of Tracy D. Elliott, the Charg-
ing Party herein , "regardless of his membership or nonmembership in Respondent
Local 639, or any other local union."
At the close of the General Counsel's case , the Council and Ward moved essen-
tially that all allegations of the complaint with respect to them be dismissed because
the General Counsel had failed to make a prima facie case legally connecting them
with any violation of the Act. Said motion was duly argued and thereafter denied.
During the course of the testimony of two witnesses called in rebuttal by the General
Counsel, the Respondents made various objections to the testimony offered , essenti-
tially on the grounds that such testimony did not constitute rebuttal , and in connection
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1419
therewith the Respondents moved to strike portions of the testimony of one of said
witnesses, Clarence Wolfe, Jr. Ruling was reserved on said motion to strike. In addi-
tion, motions on behalf of all of the Respondents to dismiss the allegations of the
complaint as to each, made at the conclusion of the evidence and thereupon argued
on the record, were not ruled upon at the hearing. All of the aforesaid motions are
hereinafter disposed of in accordance with the findings and conclusions which are
:set out below.
Following the hearing, able briefs, which have been duly considered, were filed by
the General Counsel and jointly by the Respondents.
Upon the basis of the entire record in this case, and from my observation of the
witnesses, I make the following: I
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Miller-Karr and Company, Inc., is engaged, at a construction site in Belpre, Ohio,
in building a gymnasium as an addition to the Belpre High School. It is stipulated
that, during the calendar year - 1959, a representative period, Miller-Karr had an in-
flow of goods, materials, equipment, and supplies in interstate commerce of a value
in excess of $50,000, which were purchased by it and shipped to it directly from
points outside of the State of Ohio and that during this same period, the Employer's
gross receipts were in excess of $320,000. It would appear from all of the evidence
that the Employer is a general contractor doing business in Ohio, and that service
-of the complaint herein was received by it at Chester, Ohio, the address of Horace
Karr, its vice president and general manager. I find that the Employer is engaged
:in commerce within the meaning of the Act, and that it will effect the policies thereof
-to assert jurisdiction.
II. THE RESPONDENTS
Construction and General Laborers Union Local No. 639, International Hod
Carriers, Building and Common Laborers Union of America, AFL-CIO, is a labor
organization within the meaning of the Act. The Local has its office in Marietta,
Ohio. Its business agent is Bohdan Bednarczuk, and its financial secretary is Albert
W. Chutes. Neither Bednarczuk nor Chutes holds any office in the Respondent
Council. The Ohio cities, Marietta, where part of the events in issue herein tran-
spired, and Belpre, where most of the rest of said events took place, are both within
the area served by the Respondent Local.2
Mid-Ohio Valley Building and Construction Trades Council, AFL-CIO, is a
labor organization within the meaning of the Act, having its office in Marietta, Ohio.
Robert Lorenzo Ward is the business manager and the secretary-treasurer of the
Respondent Council. Ward's positions with the Council are unpaid; he receives his
income as the business representative of "Plumbers and Pipefitters," a labor or-
ganization associated with the Council with headquarters in Marietta. Robert Ward
is also the "president of the Marietta City Council," an elective municipal office.
III. THE UNFAIR LABOR PRACTICES 3
A. Material facts and events; some preliminary conclusions
1. The Local's agreements with the Exchange
Ohio Valley Builders Exchange, Inc., of Wheeling, West Virginia, herein called
the Exchange, is an association of Ohio Valley building contractors which has agree-
1 While there are errors in the transcript which might well be corrected, I find nothing
sufficiently material to require revision.
2 Belpre, which is about 13 miles from Marietta, is just across the Ohio River from
Parkersburg, West Virginia, where some of the other unions mentioned later have their
headquarters.
3 Where there is essentially no conflict in the evidence, findings will sometimes be
stated without specifically identifying testimony relied upon. There are, however, crucial
situations about which the evidence is not only flatly contradictory, but also extensive
and involved. In addition, there are situations about which the evidence falls short of
being consistent. 'In most instances involving inconsistencies or contradictions, I will
endeavor to summarize what I believe to be the salient evidence, and to give my principal
reasons for such resolutions as I find it necessary to make. There are, of course, limits
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments with various unions in the building trades industry. At times material, there
has been in effect, between the Exchange and the Respondent Local, a general labor
agreement, a copy of which is in evidence. Said agreement, which applies to three
Ohio counties, including Washington County, in which both Marietta and Belpre are
located, was signed on behalf of the Local by Bednarczuk and Chutes, and on behalf
of the Exchange "as negotiating agent for employers of laborers within the area as
defined herein," 4 by J. E. Swan, its executive manager. This five-page document,
which will herein be called the Working Agreement, sets out wages, hours, and work-
ing conditions to remain in effect until April 1, 1961.5
On February 26, 1959, the Exchange and the Local entered into a further agree-
ment, three pages in length, a copy of which is in evidence. This additional agree-
ment, similarly signed by Swan for the Exchange and by Bednarczuk and Chutes for
the Local, spells out the details of a hiring hall system, and will herein be called the
Hiring Hall Agreement. Under date of March 25, 1959, Swan wrote Bednarczuk,
advising him that, pursuant to "our conversation," the "hiring agreement" of Febru-
ary 26 would become part of and thereafter be known as "Section 2(A) of our cur-
rent working agreement." Thus the Exchange and the Local merged their Hiring
Hall Agreement and their Working Agreement into what herein will be called the
Agreement.
With respect to developments later described, it should be noted that the above
Hiring Hall Agreement provides these exceptions to an otherwise exclusive "Hiring
Hall System," the term ;appearing at the top of the first page of said agreement:
that an employer shall have the right to appoint his own foreman; that a "minimum
number of key men may be employed directly"; that requests by a contractor for
former employees laid off within the preceding 90 days shall be given preference in
hiring; and that if the Local is unable to provide requested employees within 48
hours, an employer "may employ applicants directly at the job site," notifying the
Local thereafter of "the names and dates of such hirings."
In addition, the Hiring Hall Agreement contains these pertinent provisions, spelled
out in three separate paragraphs , numbered herein as follows:
4. Registration and selection of applicants for referral to jobs shall be on a
non-discriminatory basis and shall in no way be affected by union membership,
by-laws, rules, regulations, constitutional provisions, or any other aspect or ob-
ligation of union membership policies or requirements.
5. The Employer reserves and shall have the right to accept or reject any
applicants referred by the Union or to discharge for cause any employees who
have been accepted but who subsequently prove unsatisfactory, subject to the
Appellate Procedure herein.
16. The Employer and the Union shall post in appropriate places, where
notices to employees and applicants are customarily posted, all provisions re-
lating to the hiring'arrangement set forth in this agreement.
past which the law of diminishing returns operates in detailing and analyzing testimony.
So what follows does not purport to expound fully the record, the contentions of the
parties, or my reasons for reaching resolutions and conclusions . Nevertheless, the parties
may be assured that, in reaching all reslutions, findings, and conclusions herein, all of
the evidence has been carefully, and in some instances repeatedly, reviewed in context;
that all of the cases cited have been studied, along with many others , including a number'
of recent Board decisions which have issued Since briefs herein were filed; and that each
of the contentions advanced, in argument and in briefs, has been duly weighed, even if
not specifically discussed. Finally, since the General Counsel and the Respondents view
the evidence and issues herein so differently, and since, as the Respondents put it during
oral argument, "tough situations make tough law suits," there having thus been created
in the instant matter "some very difficult legal issues," I deem it desirable to present
rather fully the factual context in which said issues have arisen.
The membership of the Exchange does not include Miller-Karr, which is not a mem-
ber of any employers' association.
e While I do not find the date of its execution, there are. wage rates therein which apply
as early as April 5, 19518. The Working Agreement contains a union-security provision
giving nonmembers and new employees 30 days within which to join the Local. It is
also provided that an employer "deduct union dues and the original initiation fee for any
employee who voluntarily and individually authorizes the deduction on forms to be
provided by the Union."
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1421
During the latter part of March 1959, a copy of the Hiring Hall Agreement was
posted by the Local in a conspicuous place at its office in Marietta, Ohio, where it has
since remained posted .6
The Respondents contend that the "hiring hall system contained in the agreement
conforms to Mountain Pacific standards." 7 At the close of the hearing, I asked the
General Counsel if he contended that there "is anything illegal on the face" of the
Agreement. The General Counsel, reserving the right "to investigate it further,"
stated that "it is valid on its face with respect to the parties signatory to it." How-
ever, in his brief, the General Counsel states that he "takes no position as to the
legality of the agreement between the Local and the Exchange."
In view of the foregoing, and because, as will presently more fully appear, the
question of the legality of the Hiring Hall Agreement under the Board's Mountain
Pacific standards is so basic to the fundamental position of the Respondents, I be-
lieve it will expedite matters to consider, at this point, whether or not, on its face,
as distinguished from compliance with its terms and whether it later was adopted by
the Local and Miller-Karr, the Hiring Hall Agreement conforms to Mountain
Pacific standards which herein are controlling.8 Having given careful and detailed
consideration to the interrelated provisions of the Hiring Hall Agreement, including
the Appellate Procedure mentioned in paragraph numbered 5 thereof, which is
spelled out in paragraph numbered 15, and including also the four groupings speci-
fied as A, B, C, and D therein, under which applicants for employment are to be
classified, and having further considered all of same in the light of numerous de-
cisions in the Mountain Pacific line of cases, I am of the opinion that the Hiring Hall
Agreement between the Exchange and the Local, on its face, meets the standards set
by the Board in Mountain Pacific, -although the matter is not entirely free from
doubt.9 Further, I find nothing in the full Agreement, taken as a whole, including
BBednarczuk convincingly testified that the place of said continuous posting has been
on "the glass as you come in the door to the office ," facing in such a position that "any-
body walking in could not miss seeing it." It is noteworthy that paragraphs numbered
4 and 5, above quoted, appear about the middle of the first page of said agreement.
7 See Mountain Pacific Chapter of the Associated General Contractors , Inc., et al.,
119 NLRB 883 , 897, wherein the Board , after stating that the "basis for a union's re-
ferral" under a hiring hall "may be any selective standard or criterion which an em-
ployer could lawfully utilize in selecting from among job seekers ," asserted that the
Board, however , would find an agreement "to be nondiscriminatory on its face, only if
the agreement explicitly provided" -that :
(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory
basis and shall not be based on , or in any way , affected by, union membership, by-
laws, rules, regulations, constitutional provisions ,- or any other aspect or obligation
of union membership, policies, or requirements.
( 2) The employer retains the right to reject any job applicant referred by the union.
(3) The parties to the agreement post in places where notices to employees and
applicants for employment are customarily posted, all provisions relating to the
functioning of the hiring agreement , including the safeguards that we deem essential
to the legality of an exclusive hiring ball agreement.
8 See the recent decision of the Board in Peterson Construction Corp ., at al ., 128 NLRB
969. In footnote 9 of said decision , issued on August 26 , 1960, the Board, after.stating
again the three safeguards required by its Mountain Pacific decision , indicated that it
"respectfully disagrees with the contrary view of the Court of Appeals for the Ninth
Circuit," as expressed in N.L.R.B. v. Mountain Pacific Chapter of the Associated General
Contractors , Inc., et al ., 270 F. 2d 425, and stated that the Board "has determined to
adhere to its views ," as set forth in its Mountain Pacific decision, "until the Supreme
Court determines otherwise ." See also, Mountain Pacific Chapter, etc., 127 NLRB 1393.
8 In reaching this conclusion , I am not unmindful of questions raised by some decisions
in the Mountain Pacific line. See, for instance , the last paragraph in footnote 9 of the
above-cited decision in Petersen Construction, wherein , in addition to other grounds,
Board Member Rodgers "would find that the priority classifications established" in the
agreement in that case "are not objective and unlawfully discriminate between applicants
for employment." While groups A and B in the Hiring Hall Agreement in the instant
matter raise a similar type of question, I believe that said priority groupings, when
carefully analyzed in total context, are distinguishable from the priority classifications
as to which Member Rodgers would find an additional ground for violation, and are
permissible under Section 8(f) (4) of the Act. Moreover, while I am aware of certain
variations between the wording of paragraphs numbered 4 and 5 of the Hiring Hall
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-mentioned union-security provisions in the Working Agreement , which is
not legal , on its face, under Board decisional precedent as I understand it.
2. Miller-Karr 's arrangements with the Respondent Local and other unions
During the summer of 1959, Miller-Karr was engaged in building "an addition to^
the post office in Marietta , Ohio." Since that was "the first time that the Miller-Karr
Company had ever done work in the area" which the Respondent Local represents,,
its business agent , Bohdan Bednarczuk , went to said construction project ; introduced.
himself to the individual who identified himself as job superintendent ; gave the.
superintendent two copies of the above -discussed Agreement ; 10 discussed with the:
superintendent "the different conditions " contained in the Agreement ; and told the
superintendent that "we would appreciate it very much if we could do business with
him." The superintendent then told Bednarczuk that "whenever he was in need of-
any service" from the Local that he "would be more than happy to let" them know..
Thereafter , as provided for in the Hiring Hall Agreement , the superintendent called
the Local for laborers on Miller-Karr 's post office project.
Sometime during November 1959,11 as testified by Horace Karr , the vice president.
and general manager of the Employer , Miller-Karr entered into "a contract for the.
general construction work" for the addition of a gymnasium to the Belpre High
School , said work to be completed by November 30, 1960. About this time, Karr
received a letter from Respondent Ward , the business manager and the secretary--
treasurer of the Respondent Council , inviting him to a prejob conference with respect
to the Belpre High School project . Such a conference thereafter was held on the:
morning of November 23, 1959, in the office of the Council . Ward, Bednarczuk,
and representatives of five other labor organizations in the building trades met at
that time with Horace Karr, the only representative present for the Employer , which-
at that time had no labor agreements with any of the unions represented at that-
meeting. It should be noted that the Council itself , under whose auspices the meeting
was held, does not enter into labor agreements with employers , and that the twos
officials thereof who were present, as is noted more fully elsewhere , were business,
representatives of their respective craft unions, as well as officials of the Council.
It is evident , from my analysis of the testimony of the eight individuals who.
attended this conference, Karr , who was called by the General Counsel , and seven-
representatives of building trades unions , who were called as witnesses by the Re-
spondents , that most of the discussion at this meeting, which lasted 11 hours or
more, concerned such matters as general manpower needs at the Belpre project;
types of materials to be used on it; jurisdictional claims of the various crafts with
respect to various types of work which would be involved ; and working conditions„
rates, and procedures provided in area agreements of building trades unions in at-
tendance . There is no inconsistency in the testimony as to such general discussion,.
and details need not concern . us. There is, however , such sharp conflict in the:
evidence with respect to one subject of particular concern herein, namely what.
occurred concerning the Hiring Hall Agreement of the Respondent Local , that I deem
it desirable to set out in considerable detail the evidence with respect to this phase-
of the meeting.
It was apparently toward the close of this prejob conference , after craft matters.
had been gone into by their respective representatives and Karr, whose company is.
not a member of the Ohio Valley Builders Exchange , that questions concerning
laborers, the field falling within the jurisdiction of the Respondent Local, were-
reached . As to the varying versions as to what transpired in this respect , we begin
with the testimony of Horace Karr.
Karr, who testified only during .the General Counsel 's case-in-chief and was not
called as a rebuttal witness, after explaining on, direct examination that "the essence
of the main part of the conversation concerned craft jurisdictional disputes ," testified
Agreement and the first and second of the three provisions required by the Mountain
Pacific decision , I am of the opinion that such variations are immaterial, as the substance
has been incorporated.
'°It will be recalled that when the term "Agreement" is used, it refers jointly to the-
three-page Hiring Hall . Agreement and the five-page Working Agreement . The findings in
the above paragraph are made on undisputed and credibly given testimony of Bednarezuk.
While Bednarczuk was unable to identify by name the superintendent with whom he-
talked , Bednarczuk 's testimony as a whole shows that said individual was in charge of"
the Employer 's construction work at said post office project.
n It would appear that Miller-Karr 's work on the post office addition in Marietta had
been completed earlier.
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1423
that Miller-Karr was not asked "to enter into a contract " with any labor organiza-
tion involved in the meeting and that no requests were made "to sign agreements
at that meeting."
On cross-examination , Karr admitted that there was some discussion by
Bednarczuk "concerning the Laborers ' Agreement" and that he then had a copy of
the Local 's Working Agreement . With respect to one matter provided therein,
travel time , Karr testified that he recalled some difference of opinion with
Bednarczuk about travel time and some discussion of it , and that the travel pay
provided would have meant at Belpre an additional dollar per day per man . 12 Karr
testified , however, that he did not then have a "copy of the hiring hall clause" and
that Bednarczuk did not explain during that conference that "the Laborers had an
exclusive hiring hall set-up." Karr admitted that he did know about the hiring
hall setup for labor at the time of the meeting , but was unable to remember whether
Bernarczuk had explained it to him at the time Miller-Karr had been working on the
post office . Karr eventually testified , on cross-examination , that during this prejob
conference he had not "agreed to go along and follow the hiring hall setup that the
Laborers were using in Marietta"; that he had not been asked to do so; that there
had been no discussion "at all concerning the exclusive hiring hall " of the Respondent
Local; and that he had never directly been given "a copy of the exclusive hiring hall
agreement of the Laborers ' Union." 13
This is the version given by Bednarczuk on direct examination . There having been
discussion of various other working agreements and work jurisdiction , Bednarczuk
asked Karr if he was "familiar with all of the aspects of our current agreements."
Karr indicated that he was not familiar "to the fullest extent because he had so
many agreements from so many different unions" which he had not studied "too
thoroughly ." Bednarczuk said that if there was anything Karr did not understand,
he would be glad to explain it, and asked Karr if he had "copies of our agreement."
Karr said that he had so many agreements that he was not "real sure whose agree-
ments he actually had." Bednarczuk thereupon got a copy of the full Agreement,
consisting of the above -described 8 pages and the above -mentioned covering letter,
and went over the Agreement with Karr. They skipped through some things "be-
cause the working part of the agreement is standard ." Karr objected to a provision
calling for travel pay; said that he did not think they "should have to pay it on a
public work job"; and stated that he would "check with someone in Columbus to
see if you can legally ask us to pay that travel pay." Bednarczuk told Karr that
was his privilege, to let him know "whatever his findings were" and they would
discuss it further . With respect to the Hiring Hall Agreement , after Karr had looked
it over, Bednarczuk went into some of the provisions , explaining how laborers
registered and were classified into groups . Karr asked "about the people who had
worked for him on the post office there." Bednarczuk pointed out that he could
ask for whoever had "worked here in the area and were considered his employees,"
if they had not been "laid off for a period of more than ninety days ." Bednarczuk
also noted the provision for an employer to hire key men directly, but added that
he did not want Karr "to classify all the people that he would work there as key
men." When 'Bednarczuk and Karr got through talking about the hiring procedure,
Karr said , "Well, it sounds all right . I will go along with that."
With respect to Bednarczuk's cross-examination , I find nothing therein which is
inconsistent with the above version, or which detracts from its plausibility. Thus,
while Bednarczuk admitted that Karr did not directly say, "I will hire through the
hall," he testified that Karr did say that "he would notify the hall when he needed
men." Further , when asked about his understanding as to whether there was "a
hiring hall arrangement between your organization and Miller-Karr," Bednarczuk
testified that his "understanding was that after Mr. Karr had said that he would go
12 That figure is consistent with the travel pay provisions in the Working Agreement,
which are based on mileage from the courthouse in Marietta. Travel pay provided for
jobs 10 to 20 miles away is $1 per day . Belpre is about 13 miles from Marietta.
is With respect to the foregoing emphasis on the word directly, it should be noted
that Karr had earlier testified, near the close of his direct examination , that some 2 or
3 weeks before the hearing in the instant matter , Bednarczuk had visited the Belpre
jobsite; that Bednarczuk had given his brother , Paul Karr , the job superintendent at
Belpre , "a contract" which Bednarezuk wanted the Employer to sign ; that Paul Karr
had brought said contract to his [ Horace Karr's] office , telling him that Bednarczuk had
asked that it be signed; that he had not signed it; and that he [Horace Karr] "was
never contacted directly again " concerning signing said contract , which patently either
was or included the Hiring Hall Agreement . Hereinafter , when the name Karr appears
without a first name, it will be understood to refer to Horace Karr.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
along with it," the Local had with him "a verbal understanding" accepting the hiring
hall system provided in the Hiring Hall Agreement.
We turn now to the pertinent part of the testimony of the six other witnesses
for the Respondents who testified about this prejob conference. Ward, the business
manager of the Respondent Council, who had called the meeting, testified that
Bednarczuk and Karr discussed the Local's "exclusive hiring hall procedure"; that
Bednarczuk explained it to Karr "as thoroughly as he possibly knew how"; that
Bednarczuk asked Karr "if he would go along with the exclusive hiring hall system,
and he agreed"; and that the "only thing" which Karr questioned with Bednarczuk
wastravel pay.
Neal Boyce, the business manager and financial secretary of Local 972, Interna-
tional Brotherhood of Electrical Workers, who is also the president of the Respondent
Council, a "non-paid position," testified that Bednarczuk explained the hiring hall
procedure "pretty thoroughly" to Karr; that he "thought the biggest part" of the
discussion between them was on that matter; that during this discussion, Bednarczuk
had "some papers in his hand"; that he could not "say for sure" whether they con-
stituted the "hiring hall procedure or the agreement"; that it was, his own feeling
that Karr agreed to go along with the hiring hall procedure; and that he thought that
"everybody in the meeting was more or less under the impression that [Karr]
agreed to go along with it."
Allen L. Stout, business manager of Sheet Metal Local Union 299, of Parkersburg,
West Virginia, which has jurisdiction over that craft in Washington County, Ohio,
testified that Bednarczuk read something, he could not remember "just what it was,"
either from his "contract or his hiring hall procedure," to Karr at that meeting, but
that he knew that Bednarczuk read Karr "something concerning the hiring hall."
Herbert E. Dunlap, the business representative and financial secretary of Mill-
wrights Local Union 1755 of Parkersburg, testified hat Bednarczuk and Karr "had
quite a lengthy discussion on the agreement and hiring hall"; that he remembered
there also was "a question of travel time"; and that Bednarczuk read to Karr from
a document, but he "could not say whether it was the hiring hall procedure or
whether it was the agreement." When asked what Karr said "with respect to the
hiring hall setup," Dunlap answered:
Well, just before the meeting let out, the question was asked Mr. Karr as to
his position on these agreements and stuff, and he definitely made the statement
that they intended to abide by any agreements that the crafts had.
In explaining the foregoing answer on cross-examination, Dunlap indicated that
there were two exceptions to Karr's general position, "a little question over a
steward" for one of the crafts, and "the question of travel time" for laborers.
Dale Sims, of Marietta, who is the business representative of Mid-Ohio Valley
District Council of Carpenters, testified that since he did not "try to enter into
anybody else's business or conversation," the only conversation between Bednarczuk
and Karr that he could relate was that "they discussed their problems or their
agreements or hiring halls, it was of that nature"; that Karr did not want to pay
travel pay if he "could get out of it"; and that during the course of the meeting
Bednarczuk "had papers in hands, documents." Sims, who was particularly "inter-
ested in certain types of materials that went into the school job that might be sub-
contracted out to other contractors" with possible effects on his own members, could
not say that Karr "agreed to go along with, in particular, the Laborers." As Sims
understood it, Karr's agreement was that he "wished to go along with the building
trades because he wished to have his job done with our people."
The Respondents' seventh witness concerning this prejob conference was William.
G. Gouge, the representative of Iron Workers Local Union 797, of Parkersburg.
According to Gouge, the only conversation which he could "remember particularly"
between Karr and Bednarczuk pertained to travel pay on the Belpre job; they "dis-
cussed another problem," but he could not recall what it was. Gouge also remem-
bered that Bednarczuk "had some papers in his hands," to which Gouge did not pay
any particular attention.
Indicating that it is within my discretion "to determine whether or not Miller-
Karr tacitly agreed to 'go along with' the hiring hall agreement between the Local
and the Exchange," the General Counsel takes the position that Karr did not so
agree, pointing out that "all of Respondents' witnesses were agents of labor organi-
zations which were members of the Council," and urging that Karr's testimony be
credited as that of "an impartial witness,". or perhaps even more correctly, one who
"would inherently be prejudiced in favor of the Respondents, inasmuch as he would
be dependent upon them for his future labor supply." By contrast, the Respondents,
in reliance upon the above-digested testimony of their seven witnesses, contend
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1425
essentially that at the prejob conference on November 23, Karr agreed to the hiring
hall procedures spelled out in the Agreement between the Local and the Exchange,
and that additionally , before the meeting ended , Karr further stated that he "in-
tended to abide by any agreement that the crafts had."
I have given the foregoing contentions and the above -summarized testimony most
careful consideration . Viewing this matter in total context, including my observa-
tion of the witnesses and my understanding of the probabilities in labor relations,
I find myself unable to agree with the General Counsel 's position that Karr's testi-
mony should be accepted in the face of that of the Respondents ' seven witnesses.
Without belaboring the point , Karr did not impress me as entirely disinterested or
candid . On the whole , the Respondents ' witnesses impressed me as trying to tell
what they honestly could remember about this prejob conference . There was thus
no uniformity of detail which so often characterizes the testimony of several well-
rehearsed witnesses , and there was readiness to admit lack of memory about details
which would have been helpful to the Respondents ' position , details which might
well have been forgotten or not even observed in the first place by any business
agent not particularly interested in the Local 's agreements.
In any event , it is clear that the Local's Working Agreement must have been
discussed , as even Karr 's testimony shows that there was disagreement as to the
payment of travel time provided therein . Moreover , most of the Respondents'
witnesses , in flat contradiction of Karr , specifically remembered discussion between
Bednarczuk and Karr of the Local 's hiring hall procedures . Most also remembered
that Bednarczuk displayed some document to Karr during the discussion between
them, and I see no reason why Bednarczuk would have shown Karr only the
Local's Working Agreement , when its Hiring Hall Agreement had months earlier
been incorporated therewith , and when he had earlier given the superintendent of
Miller-Karr 's post office project the full Agreement . In addition , I consider it sig-
nificant that when the Local , a few weeks later under circumstances discussed below,
criticized Karr for failing to live up to the Hiring Hall Agreement , Karr did not
advance as his defense that he had not agreed to such procedures . But even more
importantly , Bednarczuk's detailed testimony as to this prejob conference impressed
me as in line with probabilities , was given convincingly , and was corroborated in
so many respects by. seemingly truthful witnesses , that I am persuaded that Bed-
narczuk's above-summarized testimony presents an essentially accurate picture of
what occurred on November 23 with respect to Karr and the Local.
Everything painstakingly considered , I believe and find that Karr agreed to go
along with the Local's Hiring Hall Agreement , after Bednarczuk had presented
him with a copy thereof and had discussed the provisions therein with Karr, and
that, except for two matters to be looked into further , one being the question of
travel pay under the Local' s Working Agreement , Karr also agreed , before the end
of the prejob conference , to go along with all of the craft agreements . In short, on
November 23, 1959 , Miller-Karr orally entered into an exclusive hiring hall agree-
ment with the Local, all of the provisions of which were in written form and were
in compliance with the .standards .in the Board's Mountain Pacific decision.
Before proceeding to the facts surrounding the employment and termination of
the Charging . Party herein, it should be noted that Miller-Karr never posted a copy
of this Hiring Hall System , and that the Local, which has at all material times had
a copy of its Hiring Hall Agreement with the Exchange , which is captioned Hiring
Hall System , posted conspicuously in its office, posted nothing thereafter to advise
that said provisions applied to Miller-Karr.14
3. The employment and separation of Tracy D. Elliott
It was evidently around the end of November or the first of December that
Miller-Karr started work at the Belpre High School construction site, using some of
its employees there who had worked that fall on the Marietta Post Office, as was
permissible under the Hiring Hall Agreement . Late in November , after the contract
had been awarded but before construction got underway , Tracy D. Elliott, the
Charging Party herein, who is a resident of Belpre and had formally been a mem-
14 On this matter of posting, the legal significance of which will be considered in a
subsequent section of this report, Bednarezuk, when asked whether or not an applicant
for employment through the Local would "have any way of knowing, by going to your
office,. that such an oral contract existed between your organization and Miller-Karr,"
answered, "Only if he was told."
597254-61-vol. 130-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her of a sister local of the Respondent Local herein ,15 saw Superintendent Paul Karr
and asked him for a job . Karr took Elliott's name and telephone number and said
that he would call him . On the morning of December 9, in response to a telephone
call, Elliott went to the Belpre site and was hired by Superintendent Karr as a
"common laborer ." In hiring Elliott , Paul Karr apparently did not say anything to
Elliott about the Local 's Hiring Hall System which the Employer had agreed to
follow, but did ask Elliott if he was a member of the Local. Elliott replied,
"I am not now , but I will be ." Karr asked Elliott by what date he would try to
be, and Eliott said that he would "go this coming Saturday and try to join the
Local." 16
On the following Saturday , December 12, Elliott went to the Local's office in
Marietta , where its Hiring Hall System was conspicuously posted . Elliott there saw
Financial Secretary Chutes; told Chutes where he was working; and offered to pay
$5 to $10 toward his initiation fee so he "could be in good standing with the Local,"
indicating that he wanted to pay the balance later. Chutes told Elliott that he could
not accept his partial offer-that it would "have to be a full initiation " fee, which is
$60. Elliott told Chutes that he "would be back next week, then, to pay him my
full initiation fee." On this occasion, Chutes, who had shortly before, as explained
at the end of the preceding footnote, told Elliott about the Local's Hiring Hall
System, did not make any reference on December 12 to the hiring hall or ask
Elliott to fill out an application for placement on the hiring list. Instead, Chutes,
who obviously realized that Elliott was working as a laborer on a job which he had
not secured through the Local's hiring hall, merely told Elliott to go on back to
work and that Bednarczuk, the Local's above-identified business representative,
would try to work out something for him "about working on the job." 17
Elliott worked on Monday and Tuesday, December 14 and 15, and was at work
on Wednesday, December 16, when the Belpre High School jobsite was visited
shortly after launch by four union representatives, Bednarczuk, Chutes, Ward, and
Boyce, all of whom have previously been identified. Although the identity of the
fourth of the above individuals, Boyce, was not known until the Respondents put on
their case,15 it is now established that the above four individuals came together that
afternoon to the jobsite in Ward's car, which Ward was driving. But why they all
came together, what transpired during the more than an hour while they were at
the site, and whether or not Ward made a certain remark, about which the evidence
is flatly contradictory, are among several matters which required consideration of
a good deal of involved and conflicting testimony given by eight witnesses. Much
of said testimony pertains largely to behavior of Ward that day upon which the
General Counsel relies as the keystone in his case against the Council and Ward,
and I believe it will be better to reserve that phase of the case until the section of
this report dealing with the liability of the Council and Ward. Accordingly, we will
"Elliott testified that he had been a member of Local 1085 In Parkersburg until about
a year ago.
"It will be remembered that under the union-security provisions of the Agreement,
new employees had 30 days within which to join the Local. The above findings as to how
Elliott 'secured employment with Miller-Karr are made upon credited and uncontradicted
testimony of Elliott, the first witness called by the General Counsel. Paul Karr was not
questioned about this phase of the case when he was called as a rebuttal witness by the
General Counsel. While Karr did not mention the Local's hiring hall to Elliott, I am
satisfied that Elliott actually knew at the time Karr hired him that the Respondent
Local did operate such a hiring hall. I base this conclusion on credibly given and not
specifically contradicted testimony of Albert Chutes, the financial secretary of the Local,
to the effect that "about a week before" the Miller-Karr project started at Belpre, he
had met and talked with Elliott in Parkersburg, at a time when Elliott was going to
try to get "work on the sewer job" at Belpre and had then told Elliott "about the hiring
hall and everything."
17 The findings in the above paragraph are made upon painstaking evaluation of the
total testimony of Elliott, due consideration being given to such portions of an affidavit,
which he had sworn to on March 1, 1960, as were read into the record ; to Elliott's un-
certainty, If not actual evasiveness, during some portions of his cross-examination ; and
to the total setting, which is not too adequately revealed by the record. Moreover, I be-
lieve that at least by the time Elliott left the Local's office on December 12, he was aware
that he should have secured his employment with Miller-Karr by referral from the Local
under Its Hiring Hall System ; that Chutes' last remark pertained to that problem ; and
that Elliott so understood.
Is It will be recalled that the complaint attributes the discharge of Elliott to "Bed-
narczuk, and Ward and others whose names are unknown to the Regional Director."
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1427
presently proceed to what was done by the two agents of the Local, Bednarczuk and
Chutes, and the results flowing therefrom.
Detailed analysis of all the evidence as to what happened on December 16, 1959,
convinces me that the principal figures in the material discussions that afternoon
were Horace Karr and Bohdan Bednarczuk ; that those two men were together
throughout the entire period which is relevant ; that their discussions progressed
through three distinct phases; that various other individuals , from time to time, were
also present during various of these phases; and that each of the three phases, which
took place at different parts of the jobsite, lasted from approximately 20 to 30
minutes. We turn now to the first phase of these discussions.
The first phase took place when Bednarczuk and Chutes met together with Horace
Karr and his brother , Paul Karr, out of doors on one of the banks of a "heat tun-
nel" then being excavated near the edge of the project . Bednarczuk opened the
discussion by telling Horace Karr that two men had been "illegally hired," and that
he would have to request that they be discharged "on the grounds that they weren't
hired through the hiring hall system ." Horace Karr , who did the talking for the
Employer, told Bednarczuk that he had tried unsuccessfully to reach the Local's
office, and that he "questioned the legality of the hiring hall system " because he did
not believe that unions were permitted to have such procedures . Bednarczuk in-
sisted that labor organizations were permitted to negotiate agreements which in-
cluded hiring halls and explained what was .required in legal hiring hall procedures.
After this question of legality had been discussed back and forth at considerable
length, Karr told Bednarczuk that he would not discharge the two employees in-
volved , who by then had been identified as Edward Hedricks and Tracy Elliott,
unless Bednarczuk gave him "a written statement requesting their dismissal." Bed-
narczuk told Karr that that was not usual procedure , but that since the Employer
had not lived up to the hiring agreement which it had accepted , he would give Karr
a written request so that Karr would have something in writing upon which to base
his action . Horace Karr then suggested that they go to the job office, some 150 or
200 feet away, to get something upon which to write the request.19
Thereupon Horace Karr, Bednarczuk , and Chutes went to the job office together;
Paul Karr did not accompany them. After further discussion there, Bednarczuk
wrote on a sheet of memorandum paper, which is in evidence, that because the hir-
ing procedure had not been followed in hiring men within the Local 's jurisdiction,
he was "requesting that the two men be discharged ." Bednarczuk added the names
of the two men, Hedricks and Elliott , and signed his own name as "B .A. Local
#639." When Bednarczuk handed Karr this written request, Karr told Bednarczuk
that he "would lay the men off," but that he could not do so then because he did
not have "any payroll checks on the job with [him ] or the cash to pay the men off."
So Karr told Bednarczuk that he "would pay them off the next day," and it was
understood that Hedricks and Elliott "would work the next day." 20
The third material phase of the discussion took place after Bednarczuk , Chutes,
and Karr had left the job office and Chutes had gone to join Ward and Boyce in
Ward's car , as it was beginning to rain . As Bednarczuk and Karr proceeded toward
the job itself , Karr raised a question about being able to keep Hedricks by "classify-
ing him as a keyman ." Bednarczuk told Karr that that was the first time he knew
that Karr was expecting to use Hedricks as a keyman ; said that in such a case, Karr
had "some grounds for argument on his lay-off"; and asked just what Hedricks'
status actually was. During the course of this phase of the discussion , Bednarczuk.
and Karr went to see Hedricks , who was a union member, and who vigorously ob
10 The findings in the above paragraph are based upon my analysis of all of the testa
mony, particularly that of Horace Karr and Bednarezuk , the principal witnesses on this
matter, the quotations being taken from the direct examination of Karr. The testimony
of Karr and Bednarczuk differed primarily in that Bednarczuk gave more details, and that
Karr testified that, during the discussion as to legality , Ward "said that it was a good
time to find out whether it was legal or not, that they would shut the job down." It is
this remark , attributed to Ward by Karr during his direct examination , which will be
considered in a subsequent section of this report . It may be well to note at this time
that Karr's direct examination also pictured a "meeting " between himself , his brother,
Ward, Bednarczuk , Chutes, and "a fourth man who I don't know his name or remember
it." But Karr ' s cross -examination shows only Bednarezuk and Chutes meeting with the
two Karr brothers at the point indicated above in the text, and places Ward some 20 or
30 feet away on the other bank of the heat tunnel.
20 The Working Agreement contains a provision that if "an employee is discharged for
any cause , he shall be paid at .once in full." The quotations in the last two sentences in
the above paragraph are from Karr 's testimony, which is in agreement with Bednarezuk's
on this phase of the case.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
jected to being let out. Eventually, when Karr stated that he might use Hedricks
as a foreman on the Belpre project and that therefore he was classifying Hedricks
as a keyman , Bednarczuk told Karr that the Local could not object to Hedricks re-
maining on the job because "the procedure that we have on the hiring of men, that
you said you would accept, permits you to hire key men." Bednarczuk thereupon
orally withdrew his written request that Hedricks be discharged. He then went to
Ward's car, where the others were waiting, and left without seeing Elliott, with
respect to whom Karr had advanced no special contention that day 21
Sometime on the afternoon of December 16, apparently after Bednarczuk, Chutes,
Ward, and Boyce had left the jobsite, Horace Karr showed the Charging Party,
Tracy Elliott, the written request which Bednazczuk had given him earlier that after-
noon . Elliott testified that Karr said, "Look what I have to do"; handed him "a
small piece of paper" which he [Elliott] "did not read"; and explained that while
he [Karr] hated to do so, he was going to have to lay Elliott off "on account of
they was going to picket the job." Karr, who followed Elliott as a witness for the
General Counsel, testified that he showed Elliott the request that Bednarczuk had
signed; that he told Elliott that he "would have to lay him off because he was hired
illegally"; and that Elliott was "very dissatisfied with the situation," saying something
which Karr could not recall exactly.
In my opinion, it is highly unlikely that Elliott would not have read the short note
which Karr handed to him. Further, it is clear that Karr's testimony as to the
explanation which he gave Elliott is consistent , both with the reason which Bednarczuk
had stated in the note, and with what actually had occurred earlier that afternoon.
Everything considered, I accept Karr's version of what he told Elliott.
I am aware, however, of the possibility that, even if Karr had not actually heard
someone make some remark about shutting the job down, asis discussed in the next
section of this report, Karr may have believed that the job would have been picketed
if he had not let Elliott go, as requested, and that Karr may have also expressed some
such fear to Elliott as justification for his yielding to Bednarczuk's written request
in Elliott's case. In any event, whether or not Karr added some such explanation
to Elliott as fear of being picketed, a point which I deem it unnecessary to decide,
Karr testified that since December 16 he has hired laborers through the Local because
"if we want to get along with labor, we had to do that."
Before proceeding to later developments, one further matter with respect to
December 16 should be discussed. On direct examination, Elliott testified that on
the job that day, Chutes came to him; that Chutes said, "I think we are going to shut
you down"; and that those were "the only words that were spoken." On cross-
examination, Elliott again attributed identical language to Chutes, explaining, when
asked if anyone was with Chutes as he walked by, that "they was kind of separating
on the job" and were "kind of walking away." Elliott did. not testify that he reported
any such remark of Chutes to any of his superiors on the construction project. Chutes
testified that while at the jobsite that afternoon, he had been "over where the men
were working"; that he had seen Elliott "working down in the concrete"; and that
he waved his hand and spoke to him. Chutes also testified, however, that he had
"had no conversation with" Elliott, and specifically denied having made 'the remark
attributed to him by Elliott.
There is nothing in the way in which Chutes gave his denial, or in the surrounding
circumstances, which convinces me that this denial should not be credited. It seems
2i The quotations in the above paragraph are from Bednarczuk's testimony, which is
essentially consistent with that of Karr on matters above set out. I have not gone into
certain testimony of Bednarezuk about Hedricks' being "a member of the Portsmouth
Local" and about his agreeing to get "a clearance or a transfer," or some testimony of
Karr as to how emphatically Hedricks had expressed his displeasure when he first learned
that his discharge had been requested, because I deem such details not material. When
first approached by Bednarczuk that day about having hired, men directly, Karr said
that he had done so but that he "had tried to reach the [Local's] office the day before
and had no response, so he just hired them." This statement by Karr, even if it were
intended to explain the hiring of Hedricks, could have had no bearing on Elliott, as
Elliott had been hired, not on December 16 or on the preceding day, but during the pre-
ceding week, on December 9. Moreover, as stated in the preceding section of this report.
I consider it significant that on December 16 Karr did not make any contention that he
had not agreed to follow the Hiring Hall System. Further, Bednarczuk's testimony
that he made his request of Karr on December 16 because, in his opinion, the Local had
a "verbal agreement that he would hire the employees through the hiring hall" was
convincingly given, as was Bednarczuk 's, further testimony that there "were no threats
made."
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1429
from all of the evidence that Chutes was not with any of the other three union repre-
sentatives when he spoke to Elliott. Patently Chutes would not have made any such,
a statement to Elliott in going to Ward's car after leaving Bednarczuk and Karr
because, by that time, Karr had agreed -to let Elliott go, thus obviating any possible
question of shutting down the job. Further, it seems to me unlikely that Chutes
would have made any such a remark to Elliott before the discussion between Bed-
narczuk and Karr had crystalized. In any event, there is no doubt in my mind,
from the record as a whole and my observation of him at the hearing, that Elliott
was attributing his predicament entirely to the Local, and it may well have been that
by the time of the hearing he was putting his own ideas as to causation into the
mouth of Chutes, as he also may have done in the above-discussed instance of in-
consistency between his testimony and that of Karr. But be all that as it may, I am
not persuaded that Chutes told Elliott on December .16 anything to the effect that he
thought that the Local was going to shut down the Belpre High School project.
On December 17, as Karr had told Bednarczuk the previous day that he would do,
Karr paid off Tracy Elliott, who was has not since worked for Miller-Karr.
On Friday, December 18, Elliott walked into the Local's hall, accompanied by
his sister and brother-in-law. Elliott offered Chutes $60 in payment of his initiation
fee in full. Chutes, who obviously knew that Elliott wanted a job, told Elliott that
he could not take the money "because we have no job." Elliott, who appears not to
have made any attempt to register for employment under the Local's Hiring Hall
System, about which I am satisfied he had known for some time, thereupon told
Chutes that he was "going to sue him or do something on account of the job" which
hc.had lost,22
It is apparent from the testimony of both Elliott and Bednarczuk that Elliott there-
after went to see Bednarczuk' in Zanesville , Ohio. According to Bednarczuk's cred-
ibly given testimony, during their conversation, which took place "a week, more or
less" after December 16, they discussed Elliott's "being laid off and about the reasons
why [Bednarczuk] had requested his layoff; the merits of contractual relations be-
tween unions and employers; and what such contracts "stood for and how they should
be administered." It would appear, however, that this discussion brought about no
meeting of minds between Bednarczuk and Elliott, as Elliott thereafter on February 29,
1960, filed the first of the charges herein, which was against the Local.
B. The case against the Respondent Council and Respondent Ward, and conclusion
pertaining thereto
Because of the way in which the interrelated issues of these consolidated cases have
been posed, I believe it is desirable at this point to consider whether or not, assuming
that the causing of Elliott's discharge was violative of the Act, the General Counsel
has established a case tying in the Council and Ward.
Essentially the General Counsel would have me infer, from all of the circumstances,
that Ward, who is obviously a busy man, being president of the Marietta City Council
in addition to holding various offices in labor organizations , and who admittedly had
no reason for being at the Belpre High School site on December 16 in his capacity
as business representative of Plumbers and Pipefitters, must have been there that
day "on behalf of the Council" to assist the Local "in its nefarious scheme of effectuat-
ing the discharge." Central to the General Counsel's position is evidence that Ward
made a remark of December 16, above referred to in footnote 19, about shutting the
job down, which the General Counsel ties in which the esaablished fact that Ward,
as agent of the Council, had called the prejob conference of November 23, and with
some as yet undiscussed testimony of Horace Karr that Ward later apologized to
him for having made the remark of December 16 about shutting the job down.
Without attempting an initial summarization of the extensive and cogently pre-
sented contentions of the Respondents here pertinent, all of which, along with ably
pressed contentions of the General Counsel, and all of the testimony of eight wit-
nesses,23 have been most carefully analyzed and weighed, I will proceed to state my
re The above quotations are from Elliott's testimony.
28 The eight witnesses on this matter whose testimony has been fully considered are
Bednarczuk, -Chutes, Ward, Boyce, Elliott, Horace Karr, Paul Karr, and Clarence Wolfe,
Jr., the latter two having been called by the General Counsel in rebuttal. As noted in
the opening section of this report, there were objections to the testimony of said rebuttal
witnesses, and ruling was reserved on a motion by the Respondents to strike portions of
the testimony of Wolfe. Said motion is hereby denied, as I am convinced that, even
accepting the Respondents' general position as to what would have been better procedure,
it is within my discretion ; to admit-the testimony in issue ; that said admission, will not
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions concerning essential aspects of this involved matter, making reference to
such testimony and contentions as seems necessary, and reminding the parties of what
-has already been said above in footnote 3.
Since it is unlikely that Ward would apologize for making a remark which he
actually had not made, let us start there. As earlier noted, Horace Karr testified,
in essence, that during the discussion between himself and Bednarczuk on Decem-
ber 16 about the legality of the Local's Hiring Hall System, Ward, at a distance of
some 20 to 30 feet and on the other bank of the heat-tunnel excavation, said "that
it was a good time to find out whether it was legal or not, that they would shut the
job down." Karr further testified that "probably" in April 1960, Ward visited the
jobsite and apologized to him "for his actions," saying that he was sorry and that he
"didn't usually act in that manner, but through a fit of temper or something, he did."
Karr also admitted, during cross-examination, that there had been an occasion, in
connection with a dispute "between the Sheet Metal Workers and another craft"
concerning the "installation of heat ducts," when he had asked Ward for copies of
the "Green Book." But Karr insisted that Ward's apology had not been made in
connection therewith and that said "installation of heat pipe happened after this
apology."
Robert Ward, who categorically denied having made the statement on December
16 attributed to him by Karr, gave essentially the following explanation-for later
making an apology to Karr, in connection with which Karr had asked for a Green
Book containing "awards by the Joint Board in Washington, D.C." During "the
latter part of March or the first part of April," Ward asked some questions about "a
large pile of twelve-inch terra-cotta pipe" which he saw at the jobsiteone day. Ward
was informed that it was "heat pipe," and that "common laborers were going to
install" it. Ward, whose "•job is to protect the jurisdiction of the Plumbers and
Pipefitters in accordance with agreements," and who believed that a jurisdictional
agreement "in regards to that type of work" gave his organization the installation of
at least part of it, "got pretty heated and made some statements perhaps [he]
shouldn't have made" to Karr. Ward thereafter talked about such pipe with "a
plumbing and heating contractor" who was working on two other school jobs and
was informed that "Plumbers and Pipefitters hadn't installed one piece of it." So
Ward thereupon "went back down and apologized for having claimed it." Karr then
asked Ward whether he thought that such work came within the jurisdiction of
"Sheet Metal Workers or the Laborers." Ward told Karr that he had no authority
to tell him which of those two organizations had jurisdiction, but agreed to send Karr
a Green Book.
Testimony of Allen Stout, the business manager of Sheet Metal Local Union 229,
establishes that during the spring of 1960, Sims appealed to the Joint Board from a
decision by which "Mr. Miller awarded [such work] to the Laborers because he said
they could do it cheaper," and was awarded said work by the Joint Board. It is
apparent, from the evidence as a whole, that disputed jurisdiction attended the in-
stallation of such heat pipe on the Belpre High School project. Further, I was at
least as favorably impressed with Ward's demeanor during his explanation of his
apology to Karr as I was with the demeanor of Karr. Moreover, Ward's explana-
tion of his apology is related to events which did take place in the spring of 1960,
and is a plausible one, especially in view of the obligation of a business agent to
protect the jurisdictional claims of his organization. Everything considered, I accept
Ward's explanation of his apology to Karr, and find that said apology has no bearing
on the events of December 16, 1959.
Let us turn now to the question of whether or not the evidence affords any rea-
sonable explanation, other than the one advanced by the General Counsel, for the
presence of a busy man like Ward, who admittedly came to the Belpre project on
December 16, along with Bednarczuk, Chutes, and Boyce. the latter being the presi-
dent of the Council who, similary to Ward, at that time had no reason for being there
in his other capacity as business manager of Electrical Workers. In my considered
judgment, credibly given testimony of the foregoing four union officials supplies the
following such reasonable explanation.
prejudice the Respondents ; that exclusion would be unduly restrictive, under all of the
circumstances ; and that consideration of all of the testimony of both Wolfe and Paul
Karr will best serve the ends of justice in determining the issues before me. In reaching
the foregoing conclusions, I have painstakingly studied not only 'the several cited sections
of Wigmore on Evidence, 3d edition and Wigmore's Code of Evidence. 3d edition, but
many more sections thereof concerning the proper scope of rebuttal, orderly procedure,
and judicial discretion. As the parties are aware, these evidentiary problems have posed
close and difficult legal questions , deserving of careful consideration, which has been
given them.
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1431
On the morning of December 16, 1959, Ward, Boyce, Bednarczuk, and Chutes set
out together in Ward's car to visit the site of projected construction at two schools
in or near Bartlett and Cutler, two Ohio cities located in Washington County.24 The
four union officials decided to make this trip together because "a new contractor by
the name of Nadalin and Shaffer," as Ward testified, had been successful in securing
contracts for "building additions to the Bartlett and Cutler schools," and they "had
never met that contractor yet." 25 However, having visited first the Bartlett school
site and then the Cutler school site, and having found, as Boyce phrased it, that the
contractor they were "looking for was [at] neither place," they decided to go on to
Belpre because, in Ward's words, "there was a restaurant south of Belpre that [he]
wanted to stop at" for lunch. After finishing lunch, the four started to return in
Ward's car to Marietta, their route through Belpre taking them within a block of
the Belpre High School. It was at this juncture that Bednarczuk, as he testified,
pointed out that "the Belpre school is on our way home," and said, "When we drive
by there, how about stopping off there. I may have some business there." This
suggestion, the first that a stop be made at Belpre, was agreeable, and it was fol-
lowed. Thus, despite circumstances which on the surface seem highly suspicious,
I am convinced and find that the presence of the four union officials together at the
Belpre jobsite on December 16 was merely a coincidence.
It will be recalled that the remark attributed by Horace Karr to Respondent Ward
is supposed to have been made during the first phase of the discussion between Bed-
narczuk and Karr, at which time Bednarczuk, Chutes, and the two Karr brothers
were together on one bank of an excavation, and that Karr placed Ward as some
20 to 30 feet away on the opposite bank 26
From my analysis of all the testimony, I am satisfied that when the four union
ment got out of Ward's car at the jobsite on the afternoon of December 16, Bed-
narczuk and Chutes went to look for Horace Karr, leaving Ward and Boyce, who
thereupon looked around the project'for perhaps as much as half an hour; spoke to a
few men on the job they happened to know; went to Ward's car when the weather
became too rainy; and there waited around 45 minutes for Bednarczuk, being first
joined in the car by Chutes. As to what happened during the period before seeking
shelter in Ward's automobile, Boyce testified convincingly that he "just moseyed
around talking to a fellow or two on the job"; that he saw Horace Karr only "at a
distance"; that he did not talk to Karr; that he did not overhear any conversation
between Karr and Bednarczuk; that he and Ward were "both more or less together
talking to George Farley, the business manager of the Bricklayers and Smitty, the
cement finisher"; that during the period involved he was "pretty close all the time
to where" Ward was; and that he did not believe that he "ever got over ten or
twenty feet" away from Ward.
Ward, whose general version as to what he did at the jobsite is similar to that of
Boyce, and who denied "emphatically" and without equivocation making the remark
attributed to him by Karr, testified that he did not at any time that day "overhear any
conversation between Bednarczuk and Horace Karr concerning the hiring hall"; that
he had no conversation "whatsoever" that day with Karr; and that "the closest point"
that he got to where Bednarczuk and Karr were in conversation that day was some
30 feet away.
So far as presently pertinent, Bednarczuk, who was with Horace Karr throughout
all three phases of the discussion that day, testified that when he went to where
Karr "was standing along a slight excavation," Chutes was "close by [his] side"; that
he was directing all of his attention to Karr and hence paid no attention to where
Ward and Boyce were and did not see them near the excavation while he was
discussing legality of the hiring hall with Karr; and that he next saw Ward and Boyce
in Ward's car just before leaving the jobsite. Bednarczuk further testifed that he did
not, on December 16, discuss "the subject of pickets" with Karr; that he did not then,
or at any other time, "threaten to picket the job"; that he did not threaten "to
shut the job down" unless Elliott and Hedricks were laid off; and hat he did not
"ever hear" Ward make "any such statement about shutting the job down."
24 The testimony as to location and distances, supplemented by study of a standard
roadmap, shows that Bartlett is located between 20 and 25 miles west of Marietta and
that Cutler is some 5 to 7 miles southeast of Bartlett, in • the general direction of, and.
on a road to, Belpre. I am satisfied that the route eventually followed that morning, as
will presently be explained, is a plausible one, as returning by way of Belpre does not add
any substantial distance over returning from Cutler through Bartlett to Marietta.
as The business reasons for such labor representatives wishing to meet such a new con-
tractor seem too obvious to need discussion.
28 See footnote 19, supra, and the paragraph to which it is appended.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The flat contradiction in the testimony of Chutes and Elliott as to whether Chutes
told Elliott on December 16, "I think we are going to shut you down ," has already
been discussed . The testimony of Chutes and Elliott otherwise sheds some further
light on the totality of circumstances bearing on the flat contradiction in the testi-
mony now under consideraion . Chutes, who before returning to Ward's car, had
been accompanying Bednarczuk , testified , with respect to the discussion between
Bednarczuk and Karr at the excavation , that he could not pick up their discussion
too well because he is "hard of hearing ." 27 Chutes did testify, however, that he had
observed Ward across the ditch which "must be about fifteen or twenty feet wide,"
and that Ward was there for "probably five minutes or so ," talking to "the carpen-
ters-or the bricklayers' man."
It would appear from Elliott's testimony that when , at a distance , he saw Bed-
narczuk and Chutes talking with Horace Karr that afternoon , Ward was not in
the group.
We come now to the testimony of the above -mentioned two rebuttal witnesses
called by the General Counsel . Superintendent Paul Karr, in charge of construc-
tion at the Belpre site and one of the four who were grouped together during the
first phase of the discussions on December 16, testified that a time when he was
close enough to touch both his brother and Bednarczuk , he "heard a remark made"
which could have been made by either Ward or Chutes ; that the remark was not
made by Bednarczuk ; and that while it "irritated [him] very much when the remark
was made," he was not "acquainted with those fellows at the time" and was not
able to "point out as to who said it." However, it would appear from Paul Karr's
testimony that at the time the remark was made,28 Chutes was on the embankment
some 10 or 12 feet from the spot where the two Karrs and Bednarczuk were grouped
together and that Ward was on the opposite side of a ditch for a "thirteen and a half
feet wide" heat tunnel.
The General Counsel 's other rebuttal witness, Clarence Wolfe, Jr., is "the foreman
of the Belpre job." His presence at the time of the remark now is in dispute did
not become known to the General Counsel until the second day of the hearing,
after the General Counsel's case -in-chief had been closed and the Respondent's case
was under way. On direct examination , Wolfe testified that while Horace Karr was
"standing by a ditch talking" to Bednarczuk , he came up to ask Paul Karr a question
about the work; that Ward was standing "on the same side of the ditch Horace was
on"; and that while he [Wolfe] was within some 5 feet of Horace Karr, about 8
feet from Bednarczuk , and "just about the same distance" from Ward , the following
transpired:
I heard Horace ask Mr. Bednarczuk , he said , "Do you think that is legal," and
Mr. Ward, he said , "If you don't think that is legal," he said , "we will pull the
job and we will find out."
On cross-examination , Wolfe, who on direct examination had placed Ward about
where I believe Chutes actually had been , and who was the only witness placing
Ward on the same side of the excavation as the Karrs and Bednarczuk , testified that
he was not "too sure which side of the ditch [Ward ] was on , whether it was on the
side that Horace was on or the other side." However, Wolfe asserted that Ward
"wasn 't over eight or ten feet from where I stood when he made the remark." And
despite the fact that Wolfe had seen Ward only on December 16 and admittedly
could not have "told you his name if I had seen him out on^the street five minutes
before I walked in here" to testify at the hearing , Wolfe, whom the General Counsel
characterizes as "an impartial witness," insisted that it was Ward who had made the
remark. But not withstanding Wolfe's unswerving insistence upon his positive identi-
fication of Ward some 5 months after the only time he had seen him, I am not con-
vinced that Wolfe had any plausible basis for his vigorously asserted certainty.
Moreover , I was not as impressed , on the whole , with Wolfe 's demeanor as a witness
as I was with that of Paul Karr, who candidly admitted his unfamiliarity with
Ward and Chutes , either of whom he indicated could have made the remark he had
heard.
-1 Chutes' difficulty in hearing was apparent when he testified.
28 After Paul Karr had earlier answered in the affirmative a question by the General
Counsel as to whether he had heard a statement made to the effect that , "We will find
out if this agreement is legal. We will shut the job down and find out," an objection to
said question was sustained , but the answer was not stricken . When it then developed
that Karr could not tell whether said remark had been made by Ward or by Chutes, no
question as to the nature of said remark was thereafter asked.
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1433
Everything having been considered in detail and patiently weighed, I am con-
vinced that if the type of remark in issue was made at all, it was made by Chutes,
possibly as an aside to Bednarczuk, and that, in any event, no such remark was made
by Ward. Several factors, not the least of which are the consistent versions of Ward,
Boyce, and Bednarczuk, impel me to this conviction. It is noteworthy that, except
for the testimony given by Wolfe, all of, the testimony, insofar as it locates Ward,
places Ward on the opposite bank of the excavation from Bednarczuk and the Karrs.
Further, while the evidence as a whole shows that Chutes was standing nearby on
the same side of the ditch, it seems evident that Ward never got much closer to
Bednarczuk and Karr than some 30 feet away on the opposite bank of the exca-
vation, the probable slope of its banks being taken into consideration. In addition,
credited testimony of Bednarczuk, Ward, and Boyce establishes that the Council
can engage in strike activity only upon vote by the business agents composing it,
and that no request for support of such action had been made to the Council by the
Local. Hence, it appears to me unlikely that Ward, who impressed me as an in-
dividual of judgment, would have, without any authorization or even a request
beforehand, injected himself into the picture so emphatically, and at a distance of
Perhaps 30 feet, after what could have been, at most only a passing appraisal of
the situation which was developing between Karr and Bednarczuk.
Leaving for consideration in the next section of this report the possibility that
Chutes actually made some such remark as that attributed to Ward, Chutes has no
official capacity in the Respondent Council. Hence, since painstaking scrutiny of
all the evidence establishes that Ward did not make the remark in issue, the case
against the Respondent Council and Respondent Ward reduces itself to the fact
that Ward, who was known through the prejob conference of November 29 to
Horace Karr as the business agent of the Council, was present at the Belpre jobsite
on December 16, at the same time Bednarczuk was in conversation with Karr.29
But inasmuch as I am persuaded that Ward' s presence there that day, far from
tying him and the Council into a "nefarious scheme" of the Local, as the General
Counsel would have me hold, was rather only a coincidence, I find myself in
agreement with the Respondents' position that Ward's mere presence " is too slim
a reed upon which to attach liability to the Council and Ward for the events of
that day."
In view of all of the foregoing and the record as a whole, it will be recommended
that, independently of any other reasons, all of the allegations of the consolidated
complaint with respect to the Respondent Council and Respondent Ward be
dismissed.
C.- Conclusions as to the case against the Respondent Local
The preceding section of this report having taken Ward and the Council out
of the picture, on- any theory of this case, there remains for consideration the allega-
tion that Bednarczuk and others unknown to the Regional Director attempted to
cause and caused Miller-Karr to discharge Elliott because Elliott was "not a member
of the Respondent Local and was not referred or sponsored by it" for employment.
We start with the point reserved in the preceding section, pertaining to the pos-
sibility that Chutes may have made a remark on.December 16 of the type erroneously
attributed by Horace Karr and Clarence Wolfe to Robert Ward.
Prior to the Board's decision of August.25, 1960, in what will herein be referred
to as Continental Baking,30 the question of whether or not the record before me
29 In view of the finding that Ward did not make the remark in issue, I find it un-
necessary to consider such alternatives as whether, even if he had made the remark, his
behavior, not having been authorized by the Council, would have been outside of the scope
of his authority, and hence would not have opened the Council to liability under the Act
for his actions. Nor do I feel that the presence of Boyce, the Council's president, along
with Ward on that occasion, has any bearing on the issues herein, since not only was
his presence, like that of Ward, a coincidence, but further because his identity was not
even known prior to the bearing itself, and hence, even though technically within the
scope of the complaint as one of the "others whose names are unknown to the Regional
Director," Boyce could have had only a vague influence in arousing possible fears in
the Employer which may have contributed to causing its action in discharging Elliott.
80 American Bakery and Confectionery Workers International Union, AFL-CIO, Local
No. 173 (Continental• Baking Company, Inc.), 128 NLRB 937. This decision, like some
others mentioned herein, is one of several Board decisions which issued about the end of
last August, which have bearing on the case at bar, and which did not come to my atten-
tion until after the preparation of this report was underway. In fact, I have seriously
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishes that Chutes, patently an agent of the Respondent Local, threatened Gen-
eral Manager Karr with a strike if the Employer did not discharge two employees
who had not been hired through the Hiring Hall System in accordance with its
contractual obligations, would have had bearing on whether or not there had been
an attempt to cause, within the meaning of the Act. This is so because, prior to the
foregoing decision, it was necessary, under the Board's decision in Henry Shore,31
to show more than mere requests or "attempts to persuade" by a labor organization
relative to the discharge of an employee in order to establish an "attempt to cause,"
within the meaning of Section 8(b)^(2) of the Act. But a careful study of the
Continental Baking decision will show that the situation has been so changed in re-
spects here material that the oral and written requests of Bednarczuk, standing
alone, are sufficient to constitute an "attempt to cause," since under Continental
Baking such requests do not constitute expression of views, arguments, or. opinion,
protected by Section 8(c) of the Act, but rather "a direction to the Employer to
discharge." 32 Hence it has become unnecessary to determine whether or not
Chutes, possibly as an aside to Bednarczuk, who patently was serving as the spokes-
man for the Local and who clearly did not make any threats himself made any
remark on December 16 of the- type contained in the testimony of witnesses for
the General Counsel. This is true because any such possibly implied threat would
be superfluous in determining, under the Continental Baking decision, whether or
not there had been an attempt to cause. Accordingly, without resolving the ques-
tion of whether Chutes actually made any such remark,33 I find that by the oral
and written requests of Business Agent Bednarczuk, the Respondent Local attempted
to cause the discharge of .Elliott. Furthermore, since said requests constituted an
attempt to cause, within the meaning of Continental Baking, I find, on all of the
evidence, that the Local did, in fact, cause the discharge of Elliott.
We turn next to the motivation for the foregoing conduct of the Respondent
Local. In my opinion, the evidence as a whole unquestionably establishes that the
Local requested Elliott's discharge for the sole reason that, in employing Elliott,
Miller-Karr had not followed the Hiring Hall System to which it had agreed on
November 23, 1959. As the facts above found as to what occurred on December 16
show, the aforesaid reason was the reason stated orally by Bednarczuk to Karr; it
was the reason put in writing by Bednarczuk; and it was the reason which Karr gave
to Elliott orally when he showed Elliott the written request of Bednarczuk. More-
over, it is evident, from the above found facts as to the conversations of December
12 and 18, 1959, between Elliott and Chutes at the Local's office, that Elliott was
quite willing to join the Union. Everything considered, I am convinced and find
that the Respondent Local, consistent with its posted Hiring Hall System and with
the above-noted statement of counsel for the Respondents at the opening of the
hearing, has not objected to the employment of Elliott by Miller-Karr "regardless
of his membership or nonmembership" in the Local. Accordingly, I find that the
evidence does not support the allegation of the complaint that the Local's action was
motivated by the fact that Elliott was "not a member of the Respondent Local,"
and it will be recommended that said allegation of the complaint be dismissed.
Before proceeding, it would be well to point out that, with the question of mem-
bership removed from the picture, what remains as to the Local's motivation is
only the failure of the Employer to live up to its agreement to follow the Hiring
Hall System, and that this frame of reference makes the case at bar quite different
from what is repeatedly found in numerous decisions involving Mountain Pacific
standards, where closed-shop procedures are quite frequently present.
considered the desirability of affording the parties an opportunity to file supplementary
briefs directed at such matters as they may feel have been affected by decisions of the
Board which have issued since the briefs herein were filed. However, having studied all
such decisions with care, and believing that I understand the basic and the alternative
positions of the parties, I have decided not to incur the delay which would thereby be
entailed. In any event, if exceptions are taken to this Intermediate Report, the parties
will have an opportunity to address any such contentions as they may wish to make to
the Board itself.
81 Denver Building and Construction Trades Council, et al. (Henry Shore), 90 NLRB 1768.
82 While these requests originally were for the discharge of two employees, Bednarezuk
thereafter withdrew any request as to Hedricks; it was only as to Elliott that attempting
to cause and causing a discharge was alleged in the complaint.
u It also, of course, becomes equally unnecessary to determine a troublesome procedural
question, to which I have given a good deal of thought, namely whether or not, in view of
the way in which this matter was litigated, it would be fair to the parties to determine
the above question without first according them an opportunity to decide whether or not
they desire to adduce additional evidence thereon.
CONSTRUCTION & GENERAL LABORERS UNION LOCAL 639 1435'
It also should be recalled that it has been found above that the Hiring Hall Agree-
ment of the Local with the Exchange meets the Board 's Mountain Pacific standards;
that said written agreement was orally accepted by the Employer, an outside con-
tractor not a member of the Exchange; and that said agreement, captioned Hiring
Hall System, has been conspicuously posted at the Local's office. However, the
Employer has not posted the Hiring Hall System, a copy of which was given to
General Manager Karr by Bednarczuk on November 23, although, according to
General Manager Karr, said system has been followed since December 16, because
"if we want to get along with labor, we had to do that." Thus we have the Em-
ployer, in order "to get along with labor," following hiring procedures which it
has not posted, and which its vice president and general manager testified, contrary
to the above-found facts, it had not even agreed to follow.
Having failed, for reasons already developed, to establish his primary position
that the Employer did not agree to "go along" with the Hiring Hall System, the
General Counsel's alternative position is essentially that "such oral agreement could
not meet the posting and other requirements of Mountain Pacific"; that as "a pre-
requisite to legality," such an agreement "must explicitly set forth the safeguards" of
Mountain Pacific; that, at most, Miller-Karr did not "explicitly agree to anything
other than to `go along with' the agreement between the Local and the Exchange";
that the Mountain Pacific safeguards "require that the agreement, not an agreement,
be posted by the par-ties"; that since the Employer was not "a party signatory to any.
agreement, it would be impossible to post the agreement between Miller-Karr and
the Local"; and that with respect to the posting in the Local's office, "this case can
be decided" on Bednarczuk's answer that an applicant for employment could know
of the oral contract between the Local and the Employer "only if he was told." 34
The brief filed by the Respondents essentially contends that the "justification for
the [Local's] action on December 16 is found in its reliance upon the hiring hall pro-
visions of its agreement which had been accepted" by Karr; that in thus orally ac-
cepting the Hiring Hall System, Miller-Karr had agreed to the "essential require-
ments" of Mountain Pacific; that Miller-Karr had followed this Hiring Hall System
when it "transferred men from the Marietta Post Office job to the Belpre School
without objection on the part of" the Local, when it "called the [Local] for referral
of the job applicants," and when the Employer "demonstrated that Hedricks was a
key man and the [Local] acceded to his continued employment"; that the "-failure
of the Employer to post a copy of the agreement is not a fault attributable to" the
Local; that the Local's having "kept posted a copy of the agreement in its office in
Marietta" has fulfilled its posting obligation; that the mere fact that a labor agree-
ment is not executed, when neither party requests that it be, "does not make the
agreement any less binding"; that to require the Local to negotiate and to execute
"in addition to its master agreement with the Builders Exchange separate agreements
with every employer undertaking a project within its area" would be, under all of the
circumstances, unreasonable , cumbersome , and unduly burdensome ; and that since
it has been Board practice to hold parties responsible for "illegal agreements or
practices pertaining to the hiring of men even though those agreements were verbal
or oral," in the case at bar, the Local should be given the benefit of "a verbal agree-
ment in compliance with the criteria required by the Board ," and not found to be
in violation of the Act for "having insisted upon fulfillment by" the Employer of its
legal obligations thereunder.
We will start with the contention of the General Counsel that the safeguards of
Mountain Pacific require that the agreement be posted by the parties. In my opinion,
a discerning reading of the Board's decision in Mountain Pacific will not support such
a contention . In the first place , the safeguard pertaining to posting , the third of the
safeguards quoted above in footnote 7, is not , as such , a regulation governing all
applicable details as to posting, but rather a statement of one of the provisions which
must be included in order for an agreement "to be nondiscriminatory on its face." 35
Moreover, what such contractual provision unambiguously obligates the parties to
post is not their entire agreement, but rather "all provisions relating to the function-
ing of the hiring agreement, including the safeguards that we deem essential to the
legality of an exclusive hiring agreement." That it is the relevant hiring hall pro-
14 See footnote 14 hereinabove.
15 It should be remembered that just before setting out the three safeguards to be in-
cluded in agreements , the Board stated in Mountain Pacific:
We agree with Senator Taft, the principal proponent of the 1947 Taft -Hartley
amendments , who stated that Section 8(b) (2) was not intended to put an end to all
hiring halls, but only those which amount to virtually closed, shops . ( See 119 NLRB
at page 896 , and also footnotes 8 and 9 on said page.)
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visions, rather than the entire agreement, which must be posted is confirmed by the
Board's recent decision in what will herein be called Cadillac Wire.36 In that de-
,cision, issued on August 26, 1960, the Board held, contrary to the contention of the
General Counsel, that "the parties, to the exclusive hiring agreement posted the re-
quired notices upon the basis of testimony that said parties "had posted copies of
-the modification set forth in footnote 2" of said decision. That footnote shows that
-what was posted was not an entire agreement, but only its "FOURTH" provision, one
pertaining to a hiring hall and the safeguards, and that said safeguards, particularly
-the third one, were included in substnce, rather than in the precise language of
Mountain Pacific.37
Problems as to the validity of oral agreements in labor relations sometimes become
quite involved and difficult. In fact, in the recent Board decision in Hooker Chemi-
cal,38 it would appear that two of the four members who composed the Board at the
time of that decision, which was issued on August 30, 1960, held the position that
an oral union-security agreement or arrangement is not lawful, while the other two
members found it unnecessary to take such a position in deciding the issues in that
case. However, in a more recent decision, that of September 9, 1960, in Frank Alioto
Fish Co.,39 the same four members of the Board unanimously decided, with respect
to a different issue involving agreements which "are oral rather than written," that it
is actually "the nature of the agreement or the arrangement which is controlling."
Turning now to the several cases cited by the General Counsel in his brief in-
volving oral agreements or arrangements concerning such matters as union security
and hiring halls, all of these cases are quite readily distinguishable on their facts from
the case at bar.40 Diligent study has revealed nothing in any of the cited cases, nor
in many others that I have consulted, which convinces me that the Board has ever
held that the illegality which has repeatedly been found in such decisions stemmed
from the mere fact that the agreement or arrangement was oral, rather than from
the nature of its provisions, including failure to provide for the Mountain Pacific
safeguards.
In any event, while the parties herein repeatedly make reference to "an oral agree-
ment," what we actually have in the instant matter is not merely an oral agreement,
but rather a written agreement which has been adopted orally, rather than being
executed. Hence its terms are quite specific. And this written agreement between
the Local and the Exchange has above been found to comply with "Mountain Pa-
cific standards. It is this written agreement, along with other written agreements of
other building trade unions, which Horace Karr adopted at the prejob conference
in November 1959. In this connection, I am not aware of any Board policy which
would prevent an outside contractor, upon coming into an organized area, from
expediting his problem of securing employees and of getting along with labor by
adopting legal agreements already existing in that area between organized labor and
organized employers. In fact, it is not a purpose of the Act to impede organization.
Hence, I cannot but essentially agree with the position taken in .the Respondent's
brief on this problem, for I believe that to require an employer, such as Miller-Karr,
and unions such as those represented at the prejob conference of November 23, to
negotiate and to sign their own separate agreements would be unduly burdensome.
Further, it would necessarily restrict fluidity of operations in the building and con-
struction industry at a time when Congress has seen fit to modify the Act in the
opposite direction 41 In short, I see nothing illegal in the apparently not unusual
procedure of orally adopting written agreements, particularly in the building trades.
Hence I am convinced, after much study, that the agreements thus orally adopted
88 Steel, Metals, Alloys and Hardware Fabricators and Warehousemen Local 810,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Cadillac Wire Corp.), 128 NLRB 1002.
87 This decision in Cadillac Wire also supports the finding made hereinabove in the last
sentence in footnote 9.
89 Hooker Chemical Corporation, successor to Shea Chemical Corporation, 128 NLRB
1394.
89 F. Alioto Co. d/b/a Frank Atioto Fish Co., et al., 129 NLRB 27.
+8 The case most nearly in point, Harbur Terminal Company, 126 NLRB 659, will be
discussed later. As to the other cited cases, I deem it unnecessary to enumerate and
analyze them, particularly since reasons not material here for finding violations are
involved.
41 See the provisions of the relatively new Section 8(f). So far as I am aware, the
Board has not yet defined the relationship of its Mountain Pacific standards, to said
provisions of the Act, and I do not undertake to determine what relationship, if any,
there may be.
CONSTRUCTION & GENERAL LABORERS- UNION LOCAL 639 1437
in. the case at bar, one of which included the Hiring Hall System particularly at issue
in the instant matter, must be treated as fully valid and binding upon the parties.
For it is my considered judgment that "any other result would force the give-and-take
reality of labor relations into a strait-jacket of lawyers' technicalities," to borrow a
phrase from the Court of Appeals for the Second .Circuit 42
While not all contentions of the parties have been separately discussed, I believe
that enough has been said to indicate what 1 consider the controlling factors on all
matters except those specifically pertaining to posting, to which we now turn.
While the Board's decision in Mountain Pacific does not, after setting out what
an agreement must provide, go on to say that the parties must actually comply with
the posting provisions of their own agreement to be in compliance with the Moun-
tain Pacific standards, I think that the decision as a whole indicates that this is what
the Board intended. In any event, the above-mentioned decision in Cadillac Wire,
in which it was found that the parties had posted the required notices, states with-
out any elaboration other than to quote in a footnote from Mountain Pacific, that
"Mountain Pacific requires that the hiring hall provisions of a collective bargaining
contract be posted as a condition precedent to its validity." Does this mean, for
instance, that the failure of one party to live up to its posting obligation, standing
alone„ can render the other party guilty of an unfair labor practice, even though that
other party may essentially have met its own obligation as to posting?
I find little light on the foregoing question, which I believe is.partly what our
problem in the case at bar comes down to, in Board decisions in which failure to
post is mentioned in connection with findings of violation. For instance, in Satch-
well Electric,43 in which both an employer and a union were respondents, as one of
several factors, including "a closed shop," the Board points out that "the terms of
the hiring arrangement were not posted either at the job site or at the union hall."
Again, in its earlier-mentioned decision in Peterson Construction,44 in which both
employers and unions were respondents, the Board, after enumerating several factors
basing its findings of violation, including that "union membership has in fact been
required as a condition of referral" and that there was no "enunciation of an em-
ployer's unconditional right to reject referred applicants," adds that "the record
reveals that the posting was in fact inadequate, in that it failed to set forth the per-
tinent hiring and referral provisions of the contract."
Clearly the posting of the Local in the instant matter did not omit any pertinent
hiring or referral provisions, as the Hiring Hall System contained on its first page
the first and second of the Mountain Pacific safeguards. If the Local's posting was
in any respect defective, it was only in that it failed specifically to mention that
Miller-Karr was one of the employers covered. The Hiring Hall System does not
list any specific employers; it refers rather to the Ohio Valley Builders Exchange,
Inc., as "The Employer." 45 I am of the opinion, however, that the purpose of the
Mountain Pacific requirement for posting is to assure employees that there is no
"unfettered union control over" hiring, rather than to afford each applicant a list
of potential employers, with any one of which he may eventually secure employ-
ment, depending on his classification and the rotation of referrals.
In short, it is my opinion that whatever minor defect, if any, there may be in the
Local's posting, the only posting defect which actually had any bearing on Elliott's
employment is the failure of the Employer to post the Hiring Hall System, a copy
of which Business Agent Bednarczuk gave General Manager Karr on November 23;
1959. Since Karr orally agreed to the provisions of that written document, Miller-
Karr was contractually obligated, by paragraph numbered 16 thereof, to post the.
provisions of the Hiring Hall' System in places where the Employer customarily
posts notices to its employees and applicants for employment. Thus we see just
how cogent is the contention of the Respondents that "failure of the Employer to
post a copy of the agreement is not a fault attributable to" the Local. For under
.all of the circumstances of this case, it is only if the Local can be held to have vio-
lated the Act because the Employer failed to live an to its posting obligation under
the terms of their agreement, that we have a basis for sustaining what now remains
of the complaint.
The only decision coming to my attention that which failure by one party to post,
standing alone, appears to have been the basis for finding a hiring arrangement
illegal, is the above-mentioned one in Harbur Terminal. In that case, the only
42 Henry V. Rahouin, d/b/a Conway's Empress v. N.L.R.R.. 195 F. 2d 906, 910 (C.A. 2).
48 Satchwell Electric Construction Company, Inc., 128 NLRB 1265.
44 See footnotes 8 and 9, supra.
45 As noted above, the Exchange acts "as negotiating agent for employers of laborers
within the area." See the text hereinabove at footnote 4, supra.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent was the employer ; it was said employer which had failed to post the
required notice; and it was that employer which was found to have violated Section
8(a)(3) and (1) of the Act, albeit in such a way that the Board adopted the Trial
Examiner 's recommendation that "the Brown-Olds remedy not be applied 46 If,
in the case at bar on the point now in issue , Miller-Karr, rather than the Local, were
the respondent , the Harbur Terminal decision would constitute precedent. But I
cannot see how that decision can constitute precedent for the actual situation herein,
since it is essentially the wrong party which the Board is asked to judge.. While this phase of the instant matter is not free from doubt, it is my considered
judgment , in view of behavior of the Employer which need not be belabored , that to
find the Local guilty of violation of Section 8(b) (1) (A) and (2 ) of the Act, pri-
marily, if not solely, because of the failure of the Employer to live up to its obliga-
tion under its agreement with the Local, when the Employer is not also before the
Board as a respondent at least to share the burden of guilt and remedy ,47 would be
inequitable and would not effectuate the purposes of the Act. Accordingly, and
only after having given this matter much thought, it will be recommended that the
allegation of the complaint now under consideration also be dismissed.
[Recommendations omitted from publication.]
48 See Harbur Terminal Company, 126 NLRB 659 , footnote 2.
*'' See Peterson Construction Corp ., et at., 128 NLRB 969 , for the opinion of the majority
,of the Board as to what "a legitimate exercise of the General Counsel's duty" will permit.
Local Union No. 505, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Granville
Camp, Paul Gibson , Nelson McCallister , Wayne Ellis, Clovis
Walker, Jr., Tim Nelson , its agents and Carolina Lumber
Company. Case No. 9-CC-9273. March 17, 1961
DECISION AND ORDER
On August 15, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
had not engaged in others, and recommending that they cease and
desist from the unfair labor practices found and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondents and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
Carolina Lumber Company also filed a brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.
The Facts of the Dispute
Carolina Lumber Company, herein called Carolina, is involved in a
labor dispute with Respondent Local Union No. 505, International
130 NLRB No. 148.