Iron Workers Local 433

National Labor Relations Board - Board Decisions

Mar 24, 1965

151 N.L.R.B. 1092 (N.L.R.B. 1965)

1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor did Chemrock have any duty to offer the drivers the contract wages where,
as here, it was motivated solely by economic considerations.
Several times orally, and in writing, during the several weeks prior to takeover,
and on August 6, the Union requested Chemrock to bargain collectively with it con-
cerning the wages of Chemrock's employees. As prior to August 1, Chemrock had
no drivers, and as after August 1, the Union represented no drivers of Chemrock,
at no time did Chemrock have a duty under Section 8(a) (5) to bargain with the
Union.
The General Counsel contended that by talking with the drivers alone and exclud-
ing a union representative, concerning the offer of employment and the wage offer,
during the few days before takeover, Chemrock further violated Section 8(a)(5).
As at that time no drivers had been hired for the new corporation, under all the
circumstances of this case, Respondent had no obligation to bargain with the Union
for their wages and working conditions.
The General Counsel contended that by unilaterally changing the wages of the
drivers when it began operations on August 1, Chemrock violated Section 8(a)(5).
As the old drivers of Tennessee Products chose not to work for Chemrock for the
lower wages offered them, Chemrock hired new drivers that day who were hired and
worked for even less than Chemrock had offered the old drivers. It was not con-
tended or shown to the contrary, and I find that these new drivers were not members
of or represented by the Union. As the Union represented no drivers of Chemrock,
the Respondent had no duty to bargain with the Union concerning their wages and
working conditions, and it was not a violation for Chemrock to negotiate wages
individually with the new drivers it hired or to set their wages unilaterally.
RECOMMENDED ORDER
Upon the above facts and conclusions, and upon the entire record in the case
considered as a whole, I find and hold that Respondent has not violated the Act, and
I recommend that the complaint be dismissed in its entirety.
Iron Workers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO [Kaiser
Steel Corporation] and Darwin W. Nyman
Iron Workers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO [Pro-
gressive Transportation Co.] and Darwin W. Nyman
Iron Workers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO [Gresch-
ner Construction Co.] and Walter Clarence Orcutt. Cases Nos.
21-CB-2219, 21-CB-2294, and 21-CB-2295. March 24, 1965
DECISION AND ORDER
On January 5, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's
Decision and a brief in support thereof.
151 NLRB No. 113.
IRON WORKERS LOCAL 433 1093
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Brown and
Jenkins].
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
Trial Examiner 's Decision , the General Counsel's exceptions and
brief, and the entire record in these cases , and hereby adopts the
findings, conclusions , and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders
that the complaint herein be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Louis S. Penfield in Los Angeles,
California, on August 18, 1964, upon a consolidated complaint of the General Coun-
sel and upon an answer by Iron Workers Local 433, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called Respond-
ent.' The issues litigated were whether Respondent violated Section 8 (b) (1) (A)
and (2) of the National Labor Relation Act, as amended, herein called the Act.
On or about June 29, 1963, Respondent filed with the Regional Director a motion
to dismiss alleging as grounds in substance, as follows that: (1) The allegations of
the complaint do not constitute violations of any section of the Act; (2) the assertion
of jurisdiction in this matter constitutes an abuse of discretion since the Board is
proceeding against a union in the building and construction industry with respect to
the punitive aspects of the Act, but withholding its processes as to the beneficial
aspects of the statute from building trades unions; (3) the actions of the Regional
Director in now proceeding with the charges in Case Nos 21-CB-2219 and 21-CB-
2294 are contrary to the provisions of the Board's Rules and Regulations, Series 8,
as amended, and Statements of Procedure, applicable to dismissal and review of,
unfair labor practice charges; and (4) the Charging Parties did not exhaust their
so-called administrative remedies as provided by an existing collective-bargaining
agreement. By an order dated July 6, 1964, the Regional Director referred this
motion to dismiss to the Division of Trial Examiners. No rulings thereon were made
at the hearing.
With regard to grounds I and 4, the merits of the motion will be considered in the
body of this Decision. With regard to ground 2 the motion is hereby denied, inas-
much as the Board has uniformly ruled, with Court support, that it has authority to
prosecute unfair labor practices in the building and construction industry notwith-
standing the fact that it has not successfully conducted elections within that industry.
N L R.B. v. A. B. Swinerton, et al., d/b/a Swinerton & Walberg Company, 202 F.
2d 511 (C.A. 9).
I The consolidated complaint issued on June 23, 1964 , and is based on charges filed
with the National Labor Relations Board, herein called the Board, on the following dates:
Case No 21-CB-2219 filed November 14, 1963, with amended charge filed June 15, 1964;
Case No. 21-CB-2294, filed March 25, 1964, with amended charge filed June 15, 1964;
Case No. 21-CB-2295 filed March 25, 1964, with amended charge filed June 15, 1964.
Copies of the consolidated complaint, the charges, and amended charges have been duly
served upon Respondent.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to ground 3 Respondent urges that in Case No. 21-CB-2219 the
Regional Director, on February 4, 1964, refused to issue a complaint, that thereafter
an appeal to the General Counsel, pursuant to the provisions of Section 102.19 of
the Board's Rules, was taken by the Charging Party, that this appeal was never ruled
upon by the General Counsel, that subsequent to the filing of the charges in Case
No. 21-CB-2294 by the same Charging Party, the Regional Director, while the
appeal was still pending, notified Respondent that he had reconsidered his action in
Case No. 21-CB-2219 and that that matter was being remanded to him for further
action, and finally that the action of the Regional Director in further proceeding on
the charge in Case No. 21-CB-2219 and consolidating it with the other charges in
the instant proceeding was arbitrary and capricious and outside the purview of the
Board Rules and Statements of Procedure. The Act provides that the General Coun-
sel exercises final authority over the issuance of complaints and that all officers and
employees in Regional Offices function under his general supervision. The Regional
Director was thus at all times acting on behalf of the General Counsel and as his
agent. The appeal provisions of Section 102.19, Board Rules, exist only as a means
of providing a party aggrieved by a Regional Director's refusal to act with a means
of securing review of this action by the General Counsel. The action of the Regional
Director in reversing his position and announcing that he would forthwith proceed
with the charge in Case No. 21-CB-2219, while the appeal was still pending, was
both known to and acquiesced in by the General Counsel. Nothing in the Board
Rules or Statements of Procedure either forbids this or suggests that proceeding in
this manner is inappropriate, and Respondent has made no showing of prejudice
resulting therefrom. Accordingly, the motion insofar as it rests on this ground, is
hereby denied.
Upon the entire record, including consideration of briefs filed by the parties,2 and
upon my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
This proceeding involves the building and construction industry and is concerned
with incidents occurring in connection with the dispatching of the Charging Parties
from Respondent's hiring hall to jobs with three different employers. No evidence
was adduced concerning the industrywide businesses of all the employers covered by
the collective-bargaining contract with Respondent which establishes the hiring hall,
but the following facts were stipulated regarding the three employers covered by this
contract who were involved in the three dispatching incidents:
Kaiser Steel Corporation, herein called Kaiser, is a Nevada corporation with an
office in Fontana, California, where it is engaged in the fabrication and sale of steel.
During the 12-month period immediately preceding June 23, 1964, Kaiser, in the
course and conduct of its operations, shipped from its Fontana, California, plant
directly to points located outside the State of California products valued in excess
of $50,000.
Progressive Transportation Company, herein called Progressive, is a California
corporation with its principal place of business located in Compton, California,
where it is engaged in the carriage and transportation by motor truck of goods and
products on a contract basis for various employers. During the 12-month period
immediately preceding June 23, 1964, Progressive, in the conduct of its business,
performed trucking services valued in excess of $50,000 involving the transportation
of goods from the State of California directly to points located outside the State of
California.
Greschner Construction Co., herein called Greschner, is a California corporation
with its principal place of business located in Santa Ana, California, where it is
engaged in the building and construction industry. During the 12-month period
immediately preceding June 23, 1964, Greschner, in the course and conduct of its
business, performed services valued in excess of $50,000 at points located outside the
State of California.
Upon the basis of the foregoing, it is hereby found that the businesses of Kaiser,
Progressive, and Greschner, and each of them, affect commerce within the meaning
of the Act, and that within existing Board jurisdictional standards it will effectuate
the policies of the Act to assert jurisdiction in this proceeding.
O The General Counsel and Respondent filed briefs. The Charging Parties appeared
at the hearing in person but were not represented by counsel and did not enter formal
appearances or file briefs.
IRON WORKERS LOCAL 433 1095
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background and the hiring hall
The General Counsel alleges in substance that Kaiser, Progressive, and Greschner
were parties to a collective-bargaining agreement with Respondent which established
exclusive hiring halls maintained by Respondent, and that on three separate occa-
sions during the course of the operation of Respondent's Bloomington, California,
hiring hall, it had discriminatorily refused to dispatch Darwin W. Nyman to jobs at
Kaiser and Progressive, respectively, and Walter Clarence Orcutt to a job at Gresch-
ner. It is further alleged that this refusal came about because Nyman and Orcutt
protested the manner in which employees were being dispatched from the Blooming-
ton hall, and it is asserted that by such conduct Respondent has violated Section
8(b)(1)(A) and (2) of the Act. Respondent denies discriminatory dispatching
practices with respect to any of the three incidents, and urges further that the Board,
in the exercise of its discretion, should refuse to assert jurisdiction and should dis-
miss the complaint because the Charging Parties have failed to avail themselves of
adequate contractual remedies existing under the collective-bargaining contract which
is controlling here.
If we are to evaluate the nature of the three incidents we must first examine the
contract provisions setting up the hiring hall, and consider the manner in which
Respondent undertook to operate the Bloomington hall as a matter of general prac-
tice. The pertinent collective-bargaining contract, which will hereafter be referred
to as the Master Agreement, covers a large group of employers doing business in the
State of California and part of the State of Nevada. It was executed by the collec-
tive-bargaining representatives of such employers, including the three above named,
and the District Council of Iron Workers of the State of California representing a
number of local unions, including Respondent, located in various parts of the State.
The Master Agreement not only sets forth the wages, hours, and the working condi-
tions of employees working for the employers covered, but it also contains elaborate
provisions for the mode of hiring employees. These include both an employment-
preference system and a system for hiring exclusively through union operated hiring
halls. These hiring halls are to be operated in a uniform manner by local unions at
various locations, and, according to the Master Agreement, dispatching for jobs is
to take place in the following manner: (1) All journeymen required by any employer
are to be obtained through the appropriate hiring hall; (2) the selection and referral
is to be done on a nondiscriminatory basis subject only to the union-security provi-
sions; (3) union-security provisions establish dispatching preference by groups with
group placement determined by geographical and experience standards; 3 (4) each
applicant for hiring is to register at the appropriate hall by appearing in person and
listing his experience and qualifications ; he will thereafter be placed on the highest
group list for which he qualifies; (5) employers are required to advise the hiring hall
of their employment needs and employees are thereafter to be referred in order from
the successive group lists ; ( 6) individuals are to remain available for employment
only if present at the hall at a regular weekly roll call and present during the regular
dispatching hours when jobs are called; (7) individual applicants sent out for employ-
ment are to be given written job referral slips; (8) individuals are to reregister weekly
or they will be dropped from current lists; (9) individuals are to be eliminated from
a current list if dispatched for a job (unless rejected by the employer or the job lasts
for only 1 day) or for failure to report to a job; and (10) the order of referral is to
be followed in all cases except that employers can request that applicants possessing
special skills may be sent out.4 In addition to the foregoing provisions relating to
the mechanics of dispatching, section 4 M of the Agreement provides as follows:
In the event that any job applicant is dissatisfied with his Group classification
or his order of referral in that such applicant claims that he was not placed in
the proper Group set forth above or is aggrieved by the operation of the hiring
arrangement, or the provisions of this Section, such aggrieved job applicant may
Group status is not an issue In this proceeding , so no purpose will be served in con-
sidering the details of these standards.
4 The Master Agreement does not appear specifically to refer to requests for an in-
dividual by name regardless of special skills . The testimony , however, indicates that
applicants were regularly referred out of order if requested by name.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeal in writing within ten (10) days from the day on which his complaint
arose to an Appellate Tribunal consisting of a representative selected by the
Employer and a representative selected by the Union and an impartial Umpire
appointed jointly by the Employer and the Union and the decision of the
Appellate Tribunal shall be final and binding.
At all times pertinent to the issues in this proceeding, the dispatching at the Bloom-
ington hiring hall was carried out by, or under the general direction of, Assistant
Business Agent Chief Beal, who is conceded to be an agent of Respondent. The
three incidents of alleged discriminatory dispatching concerned two members of
Respondent of long standing, and the gravamen of their complaint, as asserted by
the General Counsel, is that they were passed over in dispatching on these occasions
in retaliation for complaints which they had made at an earlier time to Beal's supe-
rior, concerning the manner in which he operated the Bloomington hiring hall.
B. The dispatching incidents
Two of the three alleged discriminatory dispatching incidents involved Darwin W.
Nyman, one occurring on November 12, 1963, and the other on March 3, 1964, and
the third involved Walter Clarence Orcutt, occurring on March 16, 1964. Both
Nyman and Orcutt have been members of Respondent union for many years, and
both are journeymen iron workers. Nyman is 60 years of age and Orcutt is 65 years
of age. They are qualified to do many jobs in the trade, but both concede that they
have reached an age at which they no longer wish to undertake some of the heavier
jobs, particularly those which involve work to be done at some height off the ground.
The principal job falling in this latter category is that of connector. For a period of
2 years or more prior to the hearing neither Nyman nor Orcutt had been willing to
go out as a connector.
In the late spring of 1963, both Nyman and Orcutt, as well as some of the other
members using the Bloomington hiring hall, experienced some degree of dissatisfac-
tion with the manner in which the hall was being operated at that time, by Assistant
Business Agent Chief Beal. Nyman's dissatisfaction arose in substantial measure
from an incident occurring in May of 1963, in which he became convinced that Beal
had bypassed him in a particular dispatch, and when subsequently he had complained
about this, Beal had responded to him in an insulting and vulgar manner . This pre-
cipitated discussions with other members, who were found to have had similar expe-
riences The discussions resulted in the holding of an informal meeting among the
dissatisfied members in early June of 1963. This meeting was attended by some 30
or 40 users of the Bloomington hiring hall, and it was devoted to a discussion of the
complaints about its operation and of possible ways and means to remedy the situa-
tion. Those present decided that members who had specific complaints should set
them out in the form of written statements, and that thereafter some of the group
should seek to meet with Business Agent Williams, Beal's immediate superior, who
headquartered in Los Angeles Some 2 or 3 weeks later a meeting with Business
Agent Williams was held. It was attended by Nyman and George Yasinosky, Jr,
representing the Bloomington hall users, by Business Agent Williams, Chief Beal,
and two other assistant business agents representing Respondent. Nyman and Yasi-
nosky submitted to Williams six statements prepared by members at the earlier
meeting who had complaints about the hiring hall operation.5 These statements
were not artistically drawn, but each, in somewhat general terms, expresses a degree
of dissatisfaction with Chief Beal and his operation of the Bloomington hall. In
some cases, a complainant would refer to a specific incident, accompanying this with
an expression of his belief that a person entitled to dispatch had been passed over,
and treated by Beal in a somewhat peremptory and insulting manner when he had
complained of this fact. These and various other matters relating to the operation
of the hiring hall were fully discussed with Williams and the assistant business agents.
In addition, Yasinosky, who did not submit a statement, states that he brought out
that Bea] had not been having the weekly rollcall at the Bloomington hall, and that
5 Nyman had signed one of these statements, and in it he outlined his encounter with
Beal in May, in which he claimed he had been bypassed Orcutt did not submit a state-
ment outlining any specific complaint on his part, but his name appeared as a witness
on a statement submitted by another member. In all, eight names of union members
appear on these statements.
IRON WORKERS LOCAL 433 1097
Beal had been absent from the hall too often, and had delegated his dispatching
responsibilities to his friends. It appears that the meeting was generally an amicable
one, and that at the time neither Williams nor Beal expressed any resentment toward
Nyman, Yasinosky, or any of the other union members who had lodged the com-
plaints. The meeting ended with Williams' agreeing that he would look into the
matter further and undertake to "straighten it out."
Both Nyman and Yasinosky acknowledge that following this meeting many aspects
of the operation of the hiring hall did improve. There is testimony, however, that
actually Beal did resent the complaints and so expressed himself. Thus Yasmosky
testified that before this meeting Beal had accused him of being a leader of the group
and told him to drop the matter "or else he'd close the lid on me." Yasinosky states
further that after the meeting he did not feel he was getting his full share of the dis-
patches, and that on one occasion Beal had told him "I got you right where I want
you on that bench." Beal denies this. Yasinosky, however, comes forward with
nothing specific to establish that he was actually being passed over for jobs. He
acknowledges being dispatched fairly regularly after the June meetings, and his state-
ment that he was getting less than his full share appears as an expression of belief
rather than a demonstration of fact that this actually occurred. Nyman also insists
that after this meeting his work substantially diminished and that Beal never dis-
patched him, but that he only got out when others were doing the dispatching. As
in the case of Yasinosky, however, this also appears as a statement of his conviction
rather than a showing of fact that he did not continue to get his fair share of work.6
Nyman also states that several times after this June meeting Beal had said to him
"You ratty son-of-a-bitch, I told you I was going to keep you on the bench." Beal
denies this. Nyman is unable to recall, however, just when such statements occurred.
The wording of these remarks allegedly occurring after the June meeting is stated to
be identical with that used by Beal to Nyman in May, which served as a factor in
precipitating the June meeting. Nyman's vagueness as to the dates of the later
remarks, particularly as they relate to the incidents which involve him in this pro-
ceeding, raises some doubt as to their occurrence. This is not the sort of remark
likely to have been made in a casual manner unrelated to some particular incident,
or to have occurred in a context easily forgotten. I find it more likely that Nyman's
memory on this is inaccurate, and that the only remark of this nature made by Beal
occurred in May, as Nyman testified. Orcutt testified that prior to the June meeting
he had been most friendly with Beal, and even on occasion had opened the hall and
carried on the dispatching for him. He states that after the June meeting, when
Beal learned that he was one of the complainants, Beal had refused to speak to him,
and that thereafter Beal bypassed him time and again in dispatching. Like the others,
however, except for the incident involving himself, Circuit submits nothing more than
a strongly held belief that this bypassing was taking place. I find that the record
shows, at the most, some evidence of a lack of cordiality between Beal and Nyman
and Circuit, but that disregarding the specific incidents to be considered below, it has
not been established that following the June meeting either Nyman, Circuit, or any-
one else, were either directly threatened with bypassing or actually bypassed by Beal
in dispatching.
The November 12, 1963 incident involving Nyman arose in the following manner
According to Nyman, he was present on that day at the Bloomington hiring hall.
He states that most of the time jobs are not clearly called out, but that usually "when
the telephone rings about the first thing you do is go to the front window to find out
what it is all about." Nyman says that on November 12 he was in the anteroom
with some 30 or 40 other members when the phone rang and most of those present,
including himself, started for "the main office to be dispatched to the job." From
"one of the fellows standing by" Nyman learned that there was a call for four iron
workers at Kaiser. Nyman had not heard Chief Beal announce this job at any time.
6I have some doubt as to the accuracy of Nyman's memory concerning his dispatch-
ing by Beal In response to questioning on cross-examination, Nyman, who at first had
stated with considerable emphasis that Beal had never dispatched him in the nine months
following the June meeting, admitted that on at least one occasion Beal had done so
and that it was possible that he might have done so on others. Moreover, it does not
necessarily establish animus on Beal's part even if we assume that Beal had not dis-
patched him.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Nyman had no knowledge of the nature of the jobs available or of their
duration, he threw in his dues receipt upon reaching the dispatch window. He watched
Beal fill out four referral slips. Beal then picked up Nyman's dues receipt, exam-
ined it and handed it back to Nyman with an accompanying obscene remark. It was
stipulated that the four men dispatched had numbers on the out-of-work list of 74,
9, 14, and 19, respectively, and that Nyman's number on the list was 17. Members
George Mirdo, Lester Elder and Arch Jean corroborate Nyman to the extent of
stating that, like him, they did not hear Beal make any job call, and that they were
present and saw Beal hand back to Nyman the dues receipt and heard him make the
obscene remark. None of them, however, claim that Beal looked at Nyman's receipt
prior to the time the referrals had already been made out. Beal denies making the
alleged obscene remark and denies that at this, or at any other time, he was endeav-
oring to keep Nyman "on the bench." Beal states that these particular jobs at Kaiser
required four men to put up an overhead crane, that this was high work, and that
he called for four connectors to undertake it. He does not claim, however, even to
have considered Nyman's qualifications specifically, for he states that four men with
qualifications had already bid for the job and that he had already written out their
referrals before he even saw Nyman 's dues receipt . He thereupon gave it back to
Nyman because the jobs had already been filled.
The March 3, 1964 incident involving Nyman arose in the following manner:
According to Nyman, while present in the hall on that day, he heard from a fellow
union member, but not from Beal, that a job had come in. Nyman states that imme-
diately he went to the window, threw in his dues receipt, and told Beal that he felt
he was entitled to the job, although at the time he had no knowledge exactly what
the job was. Beal replied that the job had already been filled and that another mem-
ber was being dispatched to Progressive. It was stipulated that upon this occasion
the man dispatched was No. 57 on the out-of-work list, while Nyman was No. 51 on
the same list. Beal testified that he had previously sent out a crew of men to a job
with Progressive, but that he had been advised on the morning of March 3 that they
were one man short on the job and were unable to work until another man was dis-
patched. He testified that he called for someone to go out but that no one in the
hall answered his call for the job, and that he finally persuaded a member named
Wilbur Cadle, No. 57 on the list, to take it. He denies that Nyman had ever bid on
the job until the other man had already been given a referral.
The March 16, 1964 incident involving Orcutt arose in the following manner:
According to Orcutt, while in the hall that day, he observed Beal come away from
the telephone, walk to the door of his office and announce that he wanted two con-
nectors . Orcutt, who is 65 years old, did not regard himself as qualified for a job
as a connector and made no move to bid for either of the jobs. Shortly thereafter,
however, Orcutt states that he observed four men leave the window with referral
slips. Upon inquiring , he discovered that Beal had dispatched a raising gang which
consisted of two connectors and two ground men. Orcutt regarded himself as quali-
fied to be one of the ground men and he protested to Beal that he should have been
sent out inasmuch as he was No. 2 on the out -of-work list at that time , while one
of the ground men dispatched was No. 44 and the other was not even on the list.
Nyman and two other union members who were also present on that day, also testi-
fied that they never heard a call for a raising gang, but only heard Beal call for two
connectors. After the four men had been dispatched, an argument ensued between
Beal, Orcutt, and a number of others who apparently felt that the dispatching had
been unfair. These men state that Beal responded to their protests by telling them
that if they didn't like the way he was dispatching jobs and wanted the address of the
Board, he would be glad to give it to them.7 Contrary to the others, Beal testified
7 According to both Orcutt and union member Arch Jean, during the course of this
protest Beal said to the group "If there was another business agent sitting there and
he bypassed me like that he would have to whip me." Beal does not deny this remark,
but its meaning is not altogether clear Orcutt and Jean seem to regard it as an admis-
sion by Beal that he had bypassed Orcutt and others. This conclusion without more,
however , does not necessarily follow. Beal was, at the time, defending himself against
an attack on the fairness of his dispatching . It is doubtful that he would challenge his
attackers by directly admitting that he had bypassed some of them . It is more likely
that the remark was made in some context not altogether clear on this record, and per-
haps not clear at the time to either Orcutt or Jean, but which Beal felt was a defense
of his position.
IRON WORKERS LOCAL 433 1099
that at the outset he had announced that he was going to send out a raising gang and
that he had merely called for filling the two connectors' jobs first before the ground
men's jobs were filled. Beal states that this job at Greschner was not a particularly
desirable one and was of short duration, and that after the connectors had been
cleared, Scott and Dawson threw in their numbers, and since there were no others
then before him he wrote out referrals for them. It is his testimony that after he
cleared Scott and Dawson there were no further jobs, and that when Orcutt threw
in for one it was too late. It was brought out that Orcutt was dispatched to a job
on March 17, the following day, and that his referral slip at this time was signed
by Beals
C. Discussion of the issues and concluding findings
The issue presented by the pleadings is a narrow one. It is not claimed that the
contract provisions setting up the hiring hall are unlawful, nor that it's operation
generally was conducted in an unlawful manner. The sole assertion is that on three
isolated and separate occasions between November 1963, and March 1964, Respond-
ent, acting through its agent, Chief Beal, refused to dispatch two Union members to
jobs to which they allegedly were entitled, in retaliation for a protest which they and
a number of other Union members had made in the preceding June regarding the
general operation of the hiring hall by Chief Beal. On each occasion men with
higher numbers on the out-of-work list than those held by Nyman and Orcutt were
dispatched to jobs which Nyman and Orcutt were seeking. Although this does not
necessarily establish unlawful retaliatory motivation, it suggests this as a possibility
if there be convincing evidence of resentment and hostility on Beal's part toward
these men because of their protest, or if there be shown such deviation from stand-
ard hiring hall operating procedures that an inference of this nature seems warranted.
However, if neither general hostility nor a substantial deviation can be sufficiently
established, the essential ingredient of unlawful motivation may be missing.
It may be assumed that lodging the complaints against him did nothing to endear
Nyman, Orcutt, or any of the other complainants to Beal. Indeed, as we have seen,
Beal expressed some resentment, at least to Yasinosky, on this score. The meeting
with Williams, however, was not conducted in an atmosphere of animosity, and all
parties agree that it resulted in improvements in the operation of the hall. Although
both Nyman and Orcutt insist that their personal relationship with Beal deteriorated
after the June meeting, objective evidence to support this is lacking. The relation-
ship between Beal and Nyman may not have been overly cordial after the June meet-
ing, but there is nothing to show that this represented any change from before.
Orcutt claims that his formerly friendly relations with Beal vanished after the June
meetings, and that thereafter Beal no longer spoke to him. This may be true, but of
far greater significance is the fact that, disregarding the incidents themselves, no
objective evidence has been offered to show that in the 9-month period following
the June meeting, either Nyman or Orcutt received less than his full share of dis-
patches from the hiring hall. Work was not abundant during this period, and the
failure of Nyman and Orcutt to show anything more tangible than their own sub-
jective beliefs in Beal's hostility and persistent bypassing in dispatching is an indica-
tion that whatever degree of personal coolness may have been felt, neither Beal nor
his assistant were unlawfully acting upon it. Moreover, the time span itself negates,
rather than supports, Nyman's and Orcutt's belief of continuing discrimination against
them. Although Nyman and Orcutt were regular users of the hiring hall they point
specifically to only three incidents in a 9-month period, the first not occurring until
5 months after the complaints against Beal, and the next two some 4 additional
months after that. While there is little doubt that both Nyman and Orcutt sincerely
believed that Beal held a continuing grudge against them and was only awaiting
propitious occasions to implement it, such gaps in time indicate this to be more a
matter of conjecture upon their part than a reasonable inference firmly based on
objective considerations.
Considering the record as a whole, I am not satisfied that the General Counsel has
established by convincing evidence that Beal continued to harbor such general resent-
ment toward Nyman and Orcutt for their participation in the June complaints, that
his failure to dispatch them in the three subsequent incidents can, without more,
reasonably be said to have been motivated by such unlawful considerations.
s Orcutt insists that he was not dispatched by Beal on this occasion but by someone
else. A copy of the referral slip, however, was placed in the record and Beal identified
his signature upon it.
1100 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Even though the record may be lacking in extraneous evidence of general and con-
tinuing hostility , an inference of unlawful motivation based on the incidents them-
selves might be in order if they disclose so flagrant an abridgment of the rights of
Nyman and Orcutt to dispatch on the three occasions that no other explanation suf-
fices. I am not satisfied , however, that the record will support such a conclusion.
The testimony generally shows a hiring hall operated in a personalized manner with
an atmosphere of general confusion prevailing . There was no loudspeaker system in
use at the time, and announcement of jobs, including those in the three incidents
under scrutiny , was more haphazard than clear cut. Beal insists that he always
announced and explained the nature of all jobs called in. Possibly he did, but where
he stood, how loud a voice he used, and what steps he took to see that all heard him
is not clearly shown. There is testimony that frequently there were some 30 or 40
members in the hall. There is general agreement among those who testified that
often they did not hear job calls directly, but learned of them through some sort
of grapevine by which information was passed from member to member. In addi-
tion, Beal admittedly followed no fixed pattern as to the length of time a job would
remain open for bidding . As far as we can tell, he appears to have regarded a job
call as closed whenever he got a bid from a qualified applicant . He apparently made
no consistent effort to make certain that everyone in the hall had been afforded a
full opportunity to bid upon it. However , this was Beal 's general manner of oper-
ating the hall at all times , and it appears unrelated to any specific discriminatory
objectives . As Nyman testified , "The biggest share of the time you don 't know what's
going on in the hall" and he is corroborated in this by fellow union members using
the hall but not claiming discrimination . The testimony of Beal himself hardly
describes the operation as a precise one. This lack of precision possibly invites devia-
tions from strict contract standards because inevitably persons in the hall will fail
to get accurate word of the job call and will make their applications too late. It does
not establish unlawful purpose, however , without something additional . Nothing
unusual within the limits of normal operation is shown to have occurred with regard
to any one of the three incidents with which we are concerned . Nyman and Orcutt
did not hear the job calls directly, nor did they fully understand the nature of the
jobs available . At the time they threw in, they were in each case told that it was
too late and that others had already been referred.9
We may deplore the vagueness of the job announcements and the quick closing
of the bids as matters of good operational practice and point to the fact that such
manner of operation brought about opportunities for bypassing and provided fertile
grounds for suspicions as to the fairness of the operation generally. However, the
issue here is not one of general fairness , but of specific discriminatory motivation in
three instances . It may be that a more precise operation would even have produced
different results, but in none of the incidents under scrutiny do we note such devia-
tion from the general mode of operation that an inference of discrimination based
on such deviation alone would be warranted . This may point to the need for laws
or regulations requiring more adequate recordkeeping , or perhaps other safeguards,
to protect the users of hiring halls generally , but that is beyond the issues of this
proceeding.
Upon this record I find that the General Counsel has not established by a prepon-
derance of the evidence that Respondent was unlawfully motivated in its refusal to
dispatch Nyman and Orcutt to the jobs in these three instances . Accordingly, I shall
recommend that the complaint be dismissed in its entirety.10
9 There is a suggestion that Nyman and Orcutt would not have been qualified for, nor
would they have accepted , the jobs available on these three occasions . There is some
evidence that the Kaiser job on November 12, and even the groundmen on the Greschner
job on March 16, would have required persons who were able to do high work for which
neither Nyman nor Orcutt were qualified . I am not satisfied , however, that the issues
of qualification or acceptability were ever fully joined . It is clear that both Nyman and
Orcutt wanted jobs at the time . The vague nature of the calls and the fact that the
jobs were filled before Nyman and Orcutt could really be considered for them precluded
a full consideration of their qualifications or of the acceptability of the jobs , and I place
no reliance upon these factors in making any of the conclusions herein.
10 Having found the substantive allegations of the complaint to be without merit, there
is no need to pass upon Respondent's motion to dismiss because the Charging Parties
did not avail themselves of the contractual remedies pursuant to the collective -bargaining
agreement This aspect of the motion is therefore denied. It may be noted , however,
that Respondent ' s contention in this regard appears to run contrary to the prevailing
view of the Board. Lummus Company, 142 NLRB 517; Cloverleaf Division of Adams
Dairy Co., 147 NLRB 1410; Thor Power Tool Company , 148 NLRB 1379.
COAST RADIO BROADCASTING CORPORATION, ETC. 1101
Upon the basis of the foregoing findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Kaiser , Progressive , and Greschner are each employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Iron Workers Local 433, International Association , of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO, is a labor orgaiization within
the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , it is hereby recommended that the complaint be
dismissed in its entirety.
Coast Radio Broadcasting Corporation-Radio Station KPOL
and American Federation of Television and Radio Artists, Los
Angeles Local , AFL-CIO. Case No. 21-CA-5818. March 2Ip,
1965
DECISION AND ORDER
On November 3, 1964, Trial Examiner Howard Myers issued his
Decision in the above case, finding that the Respondent had not
engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in his
attached Decision. Thereafter, the Charging Party filed exceptions
to the Trial Examiner's Decision and a supporting brief. The Re-
spondent filed an answering brief. The General Counsel filed no
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with • this case to a three-member panel
[Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Charging Party's exceptions, the briefs,
and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is dismissed.
151 NLRB No. 117.