Local 703, International Hod Carriers, Ect.

National Labor Relations Board - Board Decisions

Feb 8, 1965

150 N.L.R.B. 1614 (N.L.R.B. 1965)

1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 703, International Hod Carriers Building and Common
Laborers' Union , AFL-CIO, and its Agent, Robert Wood'
[Kuhne-Simmons Construction Co., Inc. ] and Otha McKinney.
Case No. 13-CB-1509. February 8, 1965
DECISION AND ORDER
On March 26, 1964, Trial Examiner Horace A. Ruckel issued
his Decision in the above-entitled proceeding finding that the
Respondents had not engaged in the unfair labor practices alleged
and recommending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. On November 30, 1964, following
a remand by the National Labor Relations Board of this proceed-
ing, the Trial Examiner issued his Supplemental Decision resolving
a credibility issue, as set forth in the attached Supplemental Deci-
sion. No exceptions were filed to the Supplemental Decision.
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 Fanning, Brown,
and Jenkins].
The Board has reviewed the ruling 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 Trial Examiner's Supplemental
Decision, the exceptions and brief, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tion of the Trial Examiner.'
[The Board dismissed the complaint.]
1 In the absence of exceptions thereto, we adopt, pro forma, the Trial Examiner's
Supplemental Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 9, 1963, by one Otha McKinney , the General
Counsel for the National Labor Relations Board, herein called the General Counsel
and the Board, by the Regional Director for Region 13 (Chicago , Illinois ), issued
a complaint dated November 5 , 1963, against Local 703, International Hod Car-
riers Building and Common Laborers ' Union , AFL-CIO, and Robert Wood, as its
agent , herein respectively called Respondent Union and Respondent Wood, alleging
that, Respondents had engaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A ) and 8 (b)(2) of the National Labor Relations
Act, as amended ( 29 U.S .C. Sec. 151 et seq.), herein called the Act. Specifically
the complaint as amended at the hearing alleges in substance that Respondents (1)
since about March 9, 1963, have attempted to cause and have caused Kuhne-
Simmons Construction Co., Inc., herein called Kuhne-Simmons, and others, to fail
and refuse to employ McKinney in violation of Section 8(a)(3) of the Act; (2)
150 NLRB No. 155.
LOCAL 703, INTERNATIONAL HOD CARRIERS, ETC. 1615
since the same date have discriminatorily maintained an arrangement with employ-
ers whereby employment of members is subject. to the approval of Respondent
Union ; and (3 ) about May 15, 1963 , and subsequently , have restrained and
coerced employees in violation of rights guaranteed in Section 7 of the Act, by
disciplining and threatening to discipline members for testifying in proceedings
involving Respondent Union in the Federal courts or before the Board and by
giving effect to and threatening to give effect to a provision of its constitution.
Respondents have filed answers denying the commission of any unfair labor
practices.
Pursuant to notice a hearing was held before Trial Examiner Horace A. Ruckel
at Champaign , Illinois, on December 16, 17, and 18 , 1963, at which the parties
were represented by counsel. At the conclusion of the hearing the parties argued
orally and have since filed briefs.
Upon the record as a whole, and from my observation of the witnesses, I make
the following:
FINDINGS OF THE FACT
1. THE BUSINESS OF KUHNE-SIMMONS
Kuhne-Simmons is an Illinois corporation having its principal place 7 of business
at Champaign , Illinois, where it is engaged as a general contractor in the building
and construction industry . During the year preceding the issuance of the com-
plaint it purchased and caused to be delivered directly from points outside the
State of Illinois to its office in Champaign , Illinois, or its Illinois construction sites,
materials and supplies valued in excess of $50,000. During the same period
Kuhne-Simmons purchased and caused to be delivered to its Illinois construction
sites materials and supplies valued in excess of $50,000 originating outside the
State of Illinois, which were transported to Kuhne-Simmons construction sites from
other enterprises located in Illinois, which in turn had received them from States
other than the State of Illinois.
II. THE RESPONDENT 'S LABOR ORGANIZATION
Respondent Union is a labor organization admitting common laborers to mem-
bership, and Respondent Wood is its business agent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The operation of the hiring hall
Kuhne-Simmons and other contractors are members of the Champaign County
Contractor Association which has a collective-bargaining agreement with Respond-
ent Union. This agreement is for building and construction work and contains
no provision for exclusive hiring. Job referrals from the union hiring hall are for
both building and construction work as well as highway and heavy equipment con-
struction work. Referrals for highway and heavy construction are pursuant to an
exclusive hiring arrangement contained in a collective-bargaining agreement between
the Union and certain named roadbuilding contractors. From January to Decem-
ber 1963, approximately twice as many referrals from the union hall were made
in the building and construction area where such referrals are pursuant to an
arrangement , or practice , than in the heavy and highway construction area where
they are pursuant to an exclusive hiring hall arrangement.
Assignment to heavy and highway construction under the exclusive agreement
is maintained by means of a board which contains the names of those members
who have registered . Such a board is not used in referring men for building and
construction work. The heavy and highway construction board is divided into
class A and class B. Pursuant to the contract, when a call comes in for men
for road construction the class A names on the board are gone over from top
to bottom. A person must be present in order to go to work. Only after the
class A men are called and either do not accept work or are not present, or the
class A list is exhausted , are the names of the class B list called . If a person gets a job
and works , his name is moved off the board to the working list.
Names of individuals are called out only for road construction work because
that is where the class A and class B cards are maintained with the names of
members. Names of individuals are normally not called for building and con-
struction work.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The procedure followed for referrals to building and construction jobs is as
follows: A building contractor will telephone the hall, for example, for five
laborers. Thereupon, the business agent will go to the window and call for five
men. Some men will then hold up their hands but regardless of whether any do
so, he selects five men. If there should be 50 men in the hall and 10 hold up
their hands, and the need is only for 3 men, frequently those who do not hold
up their hands will go when they are wanted to do so by Wood or his assistant.
Wood's selection in this situation is presumably based upon his judgment of the
men's qualifications. This is true where the employer in question has indicated
a preference for employees with certain skills or experience.
B. The issues; jurisdiction
The principal issues in this case are (1) whether Respondent Union, by Robert
Wood, its business agent, discriminatorily failed to refer Otha McKinney to jobs
as a common laborer with Kuhne-Simmons and other construction companies in
the area, and (2) whether the Respondents threatened to discipline and disciplined
members of the Union, including McKinney, for testifying before the Board and
in court in certain proceedings concerning Respondent Union, and (3) whether
Respondents coerced employees by threatening to give effect to a provision of the
Union's constitution?
It is nowhere contended that Kuhne-Simmons at any time refused to hire
McKinney or discriminatorily discharged him. He did in fact work for them
temporarily on two occasions. Nor is it contended that Respondents solicited
Kuhne-Simmons or any other employer not to hire him. The Company is named
in the complaint only for jurisdictional purposes. The General Counsel's rationale
as to commerce is stated, in its brief, as follows:
The evidence of practice with respect to the use of the Local 703 hall by
contractors in the Champaign area is presented-to show that there is no
jurisdictional issue and to support the General Counsel's proposition that juris-
diction is established where the practice in the area is such that employers in
commerce would call the hall for their labor supply and where, further the
union has it within its power to determine in a non-exclusive hiring hall
arrangement which members it will send, then the failure by the Union to
send or refer men to contractors availing themselves of this practice and
arrangement who are in commerce automatically creates jurisdiction. In this
case we have the additional fortuitous circumstances that McKinney was
actually referred to Kuhne-Simmons.
C. Background
Subsequent to a prior Board case pertaining to Respondent Union 2 held on
March 26, 1963, Wood, at a meeting attended by approximately 40 members, read
excerpts from the Trial Examiner's Intermediate Report which found Respondent
Union to have engaged in a secondary boycott. According to Frank Gore, business
agent of the Local for 12 years until Wood was elected, Wood went on to say
that three members 3 had testified at the hearing, that two of them, whom he did
not name, were not working, and that the third one, Ben Drake, whom he did
name, was working, and that none of them would get another referral from the
hall so long as he, Wood, was business agent. Although Drake was the only one
of the three at the meeting he was not called as a witness. Gore's testimony was
supported substantially by that of two other witnesses, Oliver Jasper and Ben
'The precise allegation in the complaint added by amendment at the hearing is as
follows :
Respondent Laborers' Union by its agent, by its officers and agents have restrained
and coerced employees by threatening to give effect to a provision of its constitution ;
which provision effectively restrained and coerced employees in violation of the rights
guaranteed in Section VII of the Act, by disciplining and threatening to discipline
members for testifying in proceedings involving Laborers' Union in the Federal
Courts as before the National Labor Relations Board
Champaign-Urbana Building Trades Council and Local 703, etc.; and Illinois Plumb-
ing and Heating, Inc., and Nogle i Black, Inc., Cases Nos. 13-CC-321, 1, 2_3, 4, etc.
Intermediate Report dated May 17, 1963
3 These were McKinney, Ben Drake, and Moses Reed, though Wood did not mention
their names.
LOCAL 703, INTERNATIONAL HOD CARRIERS, ETC. 1617
Walker. Wood, on the contrary, testified that after he had finished reading from
the Intermediate Report, he was asked by two members from the floor of the
meeting if there was not something which could be done with members who testi-
fied against the Union, and that he replied in effect that he wished there were but
that there was not. Johnson, Wood's assistant, testified to the same effect but
admitted that Wood might also have said that he would do something about it
if it were within his power, but that it was not. Another version is that of Joe
Jeffrey, called by Respondents, who identified himself as one who had asked the
question from the floor and who testified that Wood's reply was that there was
nothing that he could do and that the men would have to learn to keep their
mouths shut.
The testimony of neither Wood nor Johnson on the one hand, nor Gore or
Jasper on the other, can be said to have been without bias .4 Drake, the only one
of the three persons whom Wood named, and the only one present at the meeting,
was not called as a witness. I credit the testimony of Jeffrey to the effect that
what Reed said was said in response to a question put by him, Jeffrey, from the
floor. As to the substance of Reed's remarks I find that he said that he wished
he could do something about those who had testified at Danville "against" the
Respondent Union. I do not believe the evidence sufficient to find that he
threatened not to refer McKinney, Reed, or Drake for employment.
In connection with the Board's complaint, the General Counsel, on October 26,
1962, appeared in the Federal court at Danville, Illinois, on a petition for an
injunction against Respondent Union. McKinney, Reed, and Drake were sub-
penaed as witnesses for the General Counsel. On October 23, 3 days prior to
their testifying, McKinney showed Wood a copy of the subpena served on him
and volunteered the information that he "didn't know anything," to which Wood
replied that if he did not know anything he could not say anything. It does not
appear that after McKinney's testimony in connection with the injunction pro-
ceeding Wood again mentioned the matter to him personally, although, as above
found, he did 5 months later criticize the appearance of the same three witnesses
before the Trial Examiner.
The point is of some importance since the period of unemployment which
McKinney underwent between October 23 or 26, 1962, as later described and the
date of the filing of the charge on August 9, 1963, could not reasonably be
attributed in its entirety to McKinney's appearances as a witness, but at most,
only the period from March 26, 1963, when he testified before the Trial Exam-
iner, or, equally plausible, only from May 17, 1963, when Wood first knew that
the case had gone against the Union. As is hereafter found, McKinney was a
marginal worker who was employed on an average of only 2 months total out of
any 1 year. Prior to the injunction hearing he had worked for Kuhne-Simmons
for about 3 weeks, and he was terminated about 3 weeks before he, testified. It
would not be unusual for him to remain unemployed from November until the
following April or May, when another building season started. Few men are
referred from the union hall during the fall and winter. Why he remained unem-
ployed from April or May 1963 (not from October 26, 1962) until August 1963,
is the more relevant question.
D. Alleged refusal to refer Otha McKinney for employment
Otha McKinney is in his middle or late fifties and of small stature. He can
neither read nor write. He joined the Union in 1959 or 1960. After he testified
in the Board hearing on March 26, 1963,5 he was not referred to a job from the
union hall until after the charge was filed in this case on August 9, 1963. This
is said to be cause and effect.
4 In the background of this case was a bitter intraunion contest between the supporters
of Wood and those of Gore. Wood had won the election for business agent against Gore,
the previous business agent, in June 1963, shortly before the events testified to by these wit-
nesses The losers had appealed to the International who sent investigators to the scene.
5 This testimony is characterized by the General Counsel as "against" the Union. He
was working for Harris Construction Company when it became involved in a secondary
boycott situation and was picketed by Respondent Union This was the subject matter
of the proceeding He did not cross the picket line to go to work. Wood did resent, as
I have found , that three of his union members should testify as to some of the facts in
the case. This was at the May 28 meeting where only Drake, who was present, was
mentioned by name.
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been found, approximately twice as many referrals are made for build-
ing and construction work as for heavy and highway. In connection with heavy
and--highway referrals a board is maintained in the union hall with the names of
employees thereon divided into class A and class B. Those in class A are persons
who have worked enough hours to amount to a year's employment in the com-
munity. McKinney was in class B and had small hope of graduating into class A.
No one in class B is called for work until the names of those in class A are
exhausted. McKinney has never been called, and it is not contended that the
failure to call him for this work is discriminatory. McKinney, then, worked
exclusively on building and construction jobs, when he worked. The manner of
filling requisitions for these jobs has been described previously. It is obvious that
it has some of the characteristics of a shapeup and is subject to abuse. Moreover,
since a substantial number of requests from employers (50 percent according to
Wood) are for laborers having experience in certain skills or semiskills, those
having such skills have an advantage over those who have not. There are 98
classifications of common Laborers. Among those jobs calling for some skills are:
carpenter's helper, cement finisher helper, plastic tender, concrete puddler, signal-
man for cranes, concrete saw operator, ditchdigger, and various others. McKinney
had none of these skills, in addition to being completely illiterate. I accept as true
in substance Wood's estimate that about all that McKinney could do well was to
unload a truck, or do "general cleanup" work.
McKinney's testimony is that during the year 1961 he worked a total of about
1 month and during the year 1962, 2 months. He was unable to say during
what month he worked the most, but his best days were "when it's kind of warm
outside." So far as he knew, no employer had ever asked for him by name,
although he believed that he could do anything any other laborer could do, at
least any other small person. He had never obtained •a job as a laborer on his
own initiative.
Construction work, as a rule, begins to pick up in April when the frost recedes.
The 1963 season, however, was a little late and referrals from the union hall did
not assume substantial proportions until May. In this month a total of 146
referrals were made. In June 132 were made, in July 222, and in August 108.
The number of referrals for the entire year of 1963 was over 1,000. The record
does not disclose among how many persons these referrals were distributed,
although Wood's testimony was that around 300 used the hall.
McKinney's testimony is. that when he was out of a job, which was most of
the time, he would come to the labor hall 2 or 3 mornings a week, and sit around
and listen for a call from the business agent. The call came to those on his right•
hand and to those on his left hand, but it did not come near him. About noon
he'would go home. Wood, according to his testimony, did not remember seeing
McKinney in the hall in July, the busiest month of the year. McKinney was
apparently at the hall on some days in that month, though not consistently, because
he had obtained temporary work as a janitor at the local Elks Club. Wood testi-
fied that if McKinney had been present consistently in July he would have been
referred, since the demand for laborers was temporarily greater than the supply
and the hall was periodically emptied of applicants.
McKinney testified that about the last of May 1963, shortly after Wood's remarks
at the membership meeting, he approached Wood and said that he had heard that
Wood was not going to send him out on jobs, to which Wood replied that it would
be along while before he was sent out, and that even Blackman, a laborer aged
75, would be sent out before him. McKinney's further testimony is that Wood
added that he, McKinney, had been in Danville and should know why he was
not working. Wood testified that McKinney's inquiry had nothing to do with his
being referred to building construction but was directed to heavy and highway con-
struction jobs, and that he might have said that it would be a long while before
McKinney went out on a job, and that even Blackman would go out before him,
because Blackman was ahead of him on the class B lists I credit Wood's version
of this conversation.
The evidence is insufficient to find that Respondents have caused or attempted
to cause any employer to fail or refuse to employ Otha McKinney, in violation of
Section 8(b)(1)(A) and 8(b)(2) of the Act.
6 This was true, and McI{inney stated while testifying that he could not name anyone
behind him on the class B list who had been assigned to a job ahead of him. Actually,
as has been found , he had never worked on heavy and highway construction.
LOCAL 703, INTERNATIONAL HOD CARRIERS, ETC. 1619
E. Alleged coercion by reference to the Union 's constitution
The complaint as amended charges that Respondent Union additionally coerced
employees in violation of rights guaranteed in Section 7 of the Act' "by threatening
to give effect , and giving effect to a provision of the constitution ; which provision
effectively restrained and coerced employees in violation of the rights guaranteed
in Section 7 of the Act, by disciplining and threatening to discipline members- for
testifying in proceedings involving Laborers ' Union in the Federal courts or before
the National Labor Relations Board."
The section of Respondent Union 's constitution referred to provides that any
member before institution any suit against the Union shall first exhaust the rem-
edies available under the constitution , and that if he does not do so he may be
disciplined and the cost of court litigation assessed against him.
Gore testified that in August 1963, after McKinney had filed the charge herein,
he had a conversation with Wood in which Wood alluded to an interview between
an investigator for the Board , and Gore, McKinney , and others . Wood accused
Gore . of instigating the filing of the charge by McKinney , and showed him the
constitutional provision above described , telling Gore that this would "cost" him.
Wood denied making this statement . I see no need of resolving the contradiction
since such a statement , assuming it was made, would not be coercive within the
meaning of the Act. In the context , there is no reason to assume that "cost" refers
to a loss to be suffered by Gore in his capacity of an employee, for example by
Wood's refusing to refer him to jobs from the union hall. This would be the
only context with which the Act is concerned . As told by Gore, the "cost" is
quite clearly the cost of litigation as mentioned in the section in question .. Also,
this is the reference as the General Counsel understands it, for, as will be seen,
he urges that this section of the constitution be found unlawful. ,
The failure to distinguish between Gore as an employee within the meaning of
the Act , and Gore as a member of the Union, runs through much of this case.
There is a tendency on the part of the General Counsel to think that whenever a
union member is discriminated against or otherwise hardly set upon by a union
officer , whether because of intramural political rivalry or for some other reason,
there must be a remedy under this Act. Hence , the General Counsel, in his brief,
argues that it is an unfair labor practice for a union business agent to call the
attention of a fellow union member (Gore ) to a provision of the Union's con-
stitution requiring the exhaustion of reasonable internal procedures before initiat-
ing a proceeding in a court or before an administrative tribunal (a provision
specifically protected by the Landrum-Griffin Act), as long as it does not take
more than 4 months, and proceeds from this premise to the further contention
that such a provision , protected though it is by other law, should nevertheless be
found , ipso facto, violative of this Act. While he concedes that "Landrum-
Griffin may take care of this area ," 7 he nevertheless incorporates by reference in
his brief his oral argument on the point:
I think that portion of the constitution is a violation and the attempts to
effectuate is a violation and could be found so the prohibition could go pas(t)
this proceedings.
I think this is very significant, this section . These sections to paraphrase
them, state members are subject to internal discipline and' also the cost of
this particular proceeding if they bring this proceeding without first exhaust-
ing their internal rights , if they have internal machinery .. .
* * * * * * *
And I think this particular section needs amending with respect to this con-
stitution because persons are afraid-of the fact the constitution has been
given effect to.... ,
7 The Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 519), Title I,
Section 101(a) (4), provides as follows:
Protection of the Right To Sue.-No labor organization shall limit the right of any
member thereof to institute an action in any court, or in a proceeding before any
administrative agency . . . or the right of any member of a labor organization to
appear as a witness in any judicial, administrative, or legislative proceeding . . .
Provided, That any such member may be required to exhaust reasonable hearing
procedures (but not to exceed a four-month lapse of time) within such organization,
before instituting legal or administrative proceedings against such organizations or
any officer thereof... .
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And in this way we could never remedy the wrongs done here and the
intimidations would still be present even if we had an 8(b) (1) (A) order,
because the persons couldn't realize it.
If Wood's statement to Gore to the effect that if he initiated a proceeding before
the Board without first exhausting his remedies inside the Union it might "cost"
him, is coercive, then it is coercive without reference to the Union's constitution
or any other matter. Assuming, without finding, that Wood made such a state-
ment, I do not find it coercive. The statement could have had no reference to
Gore as an employee since Gore, by his own testimony was "not working." There
is no contention that he had been refused referral from the hall, or that at the
time Wood is said to have spoken to him he was even in the position of an
applicant for a laborer's job. The implication of his testimony is to the contrary.
For 12 years Gore had been business agent, during which time it does not appear
he worked as a laborer. He lost that job to Wood in a union election in 1960.
He failed again of reelection in 1962. There is no evidence that he has sought
work as a laborer since that time. Gore, then, was not an "employee" in August
1963, when Wood upbraided him about appealing the result of the election to the
International and instigating the charge filed by McKinney. Wood was addressing
Gore as a fellow union member, and not as an employee of an employer. The
"cost" referred to is not one in earnings as the result of a failure to assign him
to a job, but the possible cost of litigation if he did not exhaust his remedy within
the Union before seeking one outside.8
To attempt to censor or to police conversations of this kind between union
members is to venture into a territory where the Board has never before asserted
jurisdiction and in which, generally speaking the Secretary of Labor is asserting
jurisdiction by reason of the Landrum-Griffin Act. The General Counsel, how-
ever, in spite of his admission that "Landrum-Griffin may take care of this area," 9
urges that a claim be staked out for the National Labor Relations Board. I am
asked to do this, first by finding that Wood's previously quoted remark to Gore
was coercive in itself, then to find that it was the more coercive because he
referred to the Union's constitution, and finally to find the section illegal per se.
Counsel for the General Counsel does not like this section because it makes
union members "subject to internal discipline," which is certainly its intention,
and members become "afraid . . . of the fact that the constitution has been given
effect to." It needs amending, and the Board is the instrumentality to bring it
about. Its mere existence is a violation, and I am urged to find it such not only
for the purposes of this proceeding but "so the prohibition could go pas[t] this
proceeding," presumably, that is, into other or all internal union matters. Just an
8(b)(1)(A) order by the Board or court decree would be ineffective. The offend-
ing provision must be struck down. Only in this way can the "wrongs done here"
be remedied. I know of no precedent in the Board's decisions for any such
excursion as the General Counsel suggests. Its terminal point is the policing of
the relationship between union members and their union, divorced from their
identity as employees of employers. The Act has never been concerned with the
former relationship Its proscriptions do not run in that area, and the Board
has repeatedly said so. Although the General Counsel does not specifically cite the
Miranda Fuel case 10 as a precedent for his contentions, he does refer to it in such
a context as might seem to be an invocation of its authority. Such a reliance, express
or implied, is misplaced. In Miranda Fuel the Board held that a union committed
an unfair labor practice where it sought to, and did, derogate "the employment status
of an employee," specifically with reference to his seniority standing. The issue there
had, nothing to do with the relationship between a union and a union member.
a Actually Gore did not file a charge or institute any other litigation, though except
as he may have encouraged McKinney, or testify.
9 The Labor-Management Reporting and Disclosure Act of 1959 provides, among other
things, that all labor organizations shall adopt a constitution and bylaws and file a
copy with the Secretary of Labor, together with a report containing detailed information
pertaining to the amount of dues and fees, salaries of officers, the conduct of elections,
the calling of union meetings, and various other matters which concern a union mem-
ber's relation to his union. It guarantees under its bill of rights, freedom of speech
and assembly, an equitable levying of dues and assessments, notice of union meetings, and
various other rights including the right to sue
10 Msranda Fuel Company, Inc., 140 NLRB 181.
LOCAL 703, INTERNATIONAL HOD CARRIERS, ETC. 1621
It follows from the above that the allegation of the complaint that Respondents
violated Section 8 (b) (1) (A) of the Act by threatening to give effect to, and by giving
effect to, the section of the union constitution above referred to, must be dismissed.
CONCLUSIONS OF LAW
1. Kuhne-Simmons Construction Co., Inc., is an employer engaged in commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
2. Respondent , Local 703, International Hod Carriers , Building and Common
Laborers ' Union , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act, and Robert Wood is its agent.
3. The preponderance of the evidence does not establish that Respondents engaged
in the unfair labor practices alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
1. Background
On March 26, 1964, Trial Examiner Horace A. Ruckel issued his Decision finding
that Respondents had not engaged in the unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dismissed in its entitrety. The com-
plaint alleged, among other things, that Respondents "restrained and coerced employ-
ees by threatening to give effect to a provision of the [Union's] constitution, which
provision effectively restrained and coerced employees in violation of the rights guar-
anteed in Section 7 of the Act, by disciplining and threatening to discipline members
for testifying in proceedings involving Laborers' Union in the Federal Courts or
before the National Labor Relations Board."
At the hearing in support of this allegation, the General Counsel produced the
testimony of Frank Goers I that Robert Wood, business agent for Respondent Union
and himself a Respondent, advised Goers that he knew that Goers had written a letter
to the Board and had instigated the filing of the instant charge against Respondents.
Soon thereafter, according to Goers, as he was showing this letter 2 to Harold Burton,
Respondent's financial secretary, Wood walked over and, according to Goers, "shoved
this constitution at me and said here, you have been reading the constitution. I am
afraid this is going to cost you." 3 Wood denied having this conversation.
I did not resolve the credibility issue thus presented on the ground that assuming
that Wood made the statement attributed to him, it was not coercive since Goers was
not an employee within the meaning of the Act, and the "cost" referred to was the
cost of court litigation and not a loss in earnings to be suffered by Goers because of
Wood's failing to refer him to jobs from the union hall.
Since my Decision of March 26, the Board, on September 2, 1964, issued its Order
in Local 138, International Union of Operating Engineers (Charles S. Skura),4 and
on October 30, 1964, issued its Order directing that the instant proceeding be remanded
to me for the purpose of setting forth a resolution of the credibility issue between
Goers' testimony and Wood's denial, and, if necessary, "a consideration of the ration-
ale set forth" in the Skura case "as it relates to the specific facts herein, and conclu-
sions of law and recommendations."
-2. The rationale of the Skura case as applicable to the facts here
Skura was fined $200 for filing a charge with the Board before exhausting his inter-
nal union remedies. Subsequently his union refused to accept payment of his union
1 His name appears in the transcript of record and In the Trial Examiner's Decision,
erroneously, as Frank Gore.
2 The Board's Order remanding this matter to me for a finding of credibility as between
the testimony of Goers and that of Wood, reads: "As Goers was showing a copy of this
letter to Respondent's Financial Secretary, Wood walked up to Goers . . Goers'
testimony is hereinafter set forth. On this particular point he testified: "I showed
Mr. Burton a letter that I had written [the Board]." The witness at no point refers
to a copy of the letter.
3 The provision of the Union's constitution referred to provided for the Imposition of
a fine or other discipline and cost of court litigation for failure to exhaust internal union
remedies prior to resort to courts.
A 148 NLRB 679.
1622 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
dues until his fine was paid. The fine was subsequently reduced to $100, which Skura
paid. It is obvious that the coercion of Skura was real and substantial. He was an
employee within the meaning of the Act. Goers was not, although as I understand
it, the Board's Decision is not predicated upon this fact but upon the proposition that
"a rule requiring exhausting of internal union remedies by means of which a union
seeks to prevent or limit access to the Board's processes is beyond the lawful compe-
tency of a labor organization to enforce by coercive means." Nor was Goers in fact
fined or otherwise disciplined, As I found in my Decision, Goers, unlike Skura, had
for the past 12 years been a full-time functionary of the Union, up to his defeat in
the union election by Wood. He was not an employee of any other employer. For
further circumstantiality, it is to be noted that Wood's statement was said to have
been made in the union hall in the sole presence of Goers and Burton, financial secre-
tary of the Union, also not an employee as defined by the Act. Nor is there any
showing that Wood's ambiguous reference to "cost" was communicated to any
employee. Since the Board's Decision in the Skura case was not based upon the exist-
ence of an employer-employee relationship, the circumstances surrounding the making
of the alleged statement by Wood in the instant case need not be further discussed in
this connection. They do have a bearing, however, on the finding as to credibility
which the Board has directed me to make.
3. The issue of credibility
As I have found, Goers, after a continuous period of 12 years as business represen-
tative and assistant business representative of the Union, was defeated by Wood for
reelection in June 1963, as business representative. Goers contested the election' and
another election was conducted by the International. Goers lost again. On August 9,
he filed the charge herein with the Board's, Regional Office on behalf'of Otha McKin-
ney and against the Union and Wood, individually. Previous to this, on July 22,
Goers wrote the Regional Office a letter in longhand to which he signed McKinney's
name, complaining in substance that McKinney had been denied job referrals from
the union hall by Wood because he had testified in a Board hearing in which the
Union had been charged with engaging in an illegal secondary boycott.5 This alleged
failure to assign work to McKinney referred to in Goers' letter, formed the principal
subject matter of the instant complaint, which I dismissed in its entirety.
The letter of July 22 is stamped on its back as being received by the Regional Office
at 8:42 a.m. on the same date. Goers' testimony that he showed this letter to Burton
about the middle of August in the union hall, and that this prompted Wood to show
him a copy of the union constitution and to state that he was "afraid this [was] going
to cost" him, and the credibility of which I am called upon to determine, is as follows:
Q. Now, Mr. Gore, are you familiar with Mr. Harold Burton?
A. Yes.
Q. Did you have any conversation with Mr. Burton during the month of
August 1963?
* * * * * * *
A. Yes.
Q. And where did you talk to Mr. Burton?
A. At the Laborers Hall.
5 This letter (General Counsel's Exhibit No 6) was as follows:
Champaign, Ill.
National Labor Relations Board 7/22/63
176 W. Adams Street
Chicago 3, Ill.
Gentlemen : As you know I was one of the men who testified before your board at
Danville, Ill., regarding the picketing of Local 703
Bob Woods, the business rep, of Local 703, has blackballed me and told me that it
would be a long time before I went back to work on account of what happened at
Danville
My name has been on the, board at the hall since April 1. Men whose names
were below mine have been called to work and my name passed up.
Can you do anything about this.
Yours,
Otha McKinnney
202 E. Washington s
LOCAL 703, INTERNATIONAL HOD CARRIERS, ETC. 1623
Q. Was anybody else present?
A. Robert Wood.
Q. Would you tell us just what was said during this conversation?
A. Well-
TRIAL EXAMINER: What is the date of this conversation, about?
The WITNESS: It was shortly after, sometime in August. The first part of
August.
Q. (By Mr. BAER .) Shortly after the charge was filed-The question was
what was this conversation which you had with Mr. Burton?
A. Well, I showed Mr. Burton a letter that I had written to you.
Q. Do you mean the Board?
A. Yes, regarding this Otha McKinney matter, where the Board had said they
were thinking of prosecuting Otha McKinney and Local 703 and I wrote a letter.
Q. Do you mean prosecuting Otha McKinney or Robert Wood?
A. Robert Wood. And I wrote a letter and said I didn't think Local 703
should be held responsible for the ignorance of Robert Wood. And Robert
Wood heard that and he took this little yellow book, International-
- * * * *
Q. (By Mr. BAER .) Did Mr. Wood enter the conversation at this point?
A. Yes.
* * * * * * *
Q. What did he do or say?
A. He shoved this constitution at me and said here, you have been reading
the constitution. I am afraid this is going to cost you.
* * * * * * *
TRIAL EXAMINER: What did Mr. Burton say?
The WITNESS: He said he thought I was right. That Local 703 shouldn't be
held responsible for the ignorance of Robert Wood-arrogant ignorance , I think
the word is.
I do not credit this testimony for the following reasons.
The letter of July 22 was stamped as, received in the Regional Office at Chicago
on the same date. The presumption is hardly assailable that it remained in the pos-
session of Board personnel until it.was identified by Goers on December 16 at the
hearing and received in evidence. Goers could not, therefore, have showed it to
Burton on about August 15 as-he testified. Goers at no place in his testimony speaks
of a "copy" of the letter. He examined the document when the General Counsel
handed it to him, and described it as the one he showed Burton on the date and occa-
sion described. Neither counsel for the Board nor for Respondents in their examina-
tion of the witness or in their briefs,6 raised any question of a copy, as for example,
since the original letter was in longhand, whether the "copy" was a carbon impression
(not common but not unknown when the original is in longhand, in ink), or whether
it was made as a separate transcription, and, in any case, what became of it. Refer-
ence to a "copy" first appears in the Board's Order remanding the matter to me for
a resolution of the conflicting testimony of Goers and Wood. If Wood's testimony is
credited that the incident did not take place, then no questions arises as to whether
Goers showed Burton an original, a copy, or anything at all. I credit Wood's denial.
It is consistent with the record as it stands. Goers could not have shown Burton in
the month of August 1963 "a letter" received by the Board on July 22.
A further reason for discrediting Goers' testimony is his statement as to the con-
tents of the letter of July 22: "Well, I showed Mr. Burton a letter that I had written
to [the Board]-where the, Board had said they were thinking of prosecuting [Robert
6 The General Counsel In his brief avoids any' reference to Goers ' testimony that he
was showing Burton a letter' when Wood approached and threatened him. Instead, he
uses these words: "In the context of writing letters to the National Labor Relations
Board relative to McKinney, Wood showed [Goers] article XVI, Section 2 page 36 of the
Constitution of the International Hod Carriers and Locals " [ Emphasis supplied ]
Thus, by substituting the "writing [of] letters," in the place of the actual context sup-
plied by the witness, which was the showing of a particular letter to Burton, the Gen-
eral Counsel avoids the suggestion of either an original or a copy. The difficulty is
avoided by circumventing it. If, by the emphasized phrase , the General Counsel seeks to
imply that the showing of the letter to Burton was contemporaneous with its writing,
and that hence what Goers showed Burton was the original before mailing , it is sufficient
to point out that the conversation in, question could not have taken place after the
charge was filed on August 9.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood] and Local 703 and I wrote a letter-and I said I didn't think Local 703 should
be held responsible for the ignorance of Robert Wood," at which point Wood, he
says, entered the conversation.
The letter of July 22, set forth above, says nothing whatever about Local 703's
being held responsible for Wood's actions.? This contradiction retains its force even
if it were to be assumed that Goers was showing Burton only a copy of the letter.
Additionally, I do not credit Goers' testimony that the Board "had said" they were
thinking of "prosecuting" Wood and Local 703, following which, or as the result of
which, he wrote the letter. The witness is dating this purported statement prior not
only to the filing of the charge by McKinney-Goers on August 9, but even prior to
the July 22 letter. The witness is saying, in effect, that he wrote this letter in protest
because he had been told by somebody that not only was a proceeding against Wood
being considered but one against Local 703 also. I am unable to believe that any
representative of the Board or of the General Counsel told Goers or anyone else, even
before the charge herein was filed, much less investigated, and even before July 22,
when Goers first wrote the Board, that the Board was thinking of issuing a complaint
against these Respondents.
Finally, I credit Wood rather than Goers because of the latter's demonstrated hos-
tility to Wood. Goers, after 12 years in office, was defeated by Wood in a union
election. He appealed to the International union for a new election, and was defeated
again. His demeanor on the stand revealed his hostility, as for example, his charac-
terization of Wood as arrogantly ignorant. Burton, who, judging from Goers' own
testimony, was not unfriendly to him, was not called as a witness. Construing Goers'
testimony most favorably to him, I find it confused, contradictory, and of little proba-
tive value. I have found Wood to be a generally credible witness on other matters.
I credit his denial of the statement attributed to him by Goers as to which the Board
has directed me to resolve the question of credibility.
7 Although Goers' testimony does not permit any conclusion other than that he is
referring throughout to the original letter dated July 22, 1963, Goers did write one other
letter to the Board (General Counsel's Exhibit No. 7) dated July 24. It, too, makes
no mention directly or indirectly of Local 703 ' s being held responsible for the acts of
Robert Wood.
Royal Crown Cola Bottling Co. of Sacramento and Teamsters,
Chauffeurs, Warehousemen & Helpers, Local Union No. 150,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Petitioner. Case No. 20-RC-
5947. February 8, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section. 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
E. Terry Durant. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this case to a
three-member panel [Chairmen McCulloch and Members Fanning
and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning
of the National Labor Relations Act, as amended.
150 NLRB No. 159.