Local 92, Int'l Assn. of Bridge, Structural, Etc.

National Labor Relations Board - Board Decisions

Sep 4, 1962

138 N.L.R.B. 428 (N.L.R.B. 1962)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proving his relevant claim , and that the allegations under discussion should there-
fore be dismissed.?
Upon the basis of the foregoing findings of fact , and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. The Union is, and has been at all material times , a labor organization within
the meaning of Section 2 (5) of the Act.
2. The Company is, and has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
3. The record does not establish that the Company committed the unfair labor
practices imputed to it in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and the
entire record in this proceeding , it is recommended that the Board enter an order dis-
missing the complaint.
'rIn view of the conclusions reached above regarding the conversation between Cohen
and Layton , I see no need to determine whether Layton's testimony spells out an in-
struction not to sign "a union card ," as distinguished from advice or a suggestion not to
do so , nor whether such advice , suggestion or Instruction , whatever label one would
apply to the relevant statement Layton imputes to Cohen, is privileged under Section 8(c)
of the Act , which provides that the expression of "views, argument , or opinion . . . shall
not constitute or be evidence of an unfair labor practice . . , if such expression con-
tains no threat of reprisal or force or promise of benefit."
Local No. 92, International Association of Bridge , Structural
and Ornamental Iron Workers , AFL-CIO [R. W. Hughes Con-
struction Co., Inc .] and C. V. SteIzenmuller , attorney
C. H. Green , business agent of Local No . 92, International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO and C. V. Stelzenmuller, attorney. Cases Nos. 10-
CB-1314-1 and 10-CB-1314-2. September 4, 1902
DECISION AND ORDER
On May 23, 1962, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled' proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative actions, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief.
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 pane] [Chairnian McCulloch and Members
Leedom and Brown].
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record. The Board hereby affirms the Trial
138 NLRB No. 50.
LOCAL 92, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 429
Examiner's rulings made at the hearing and adopts his findings and
conclusions.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order with the following modifications :
1. Paragraph 1(a) of the Recommended Order shall be modified
by deleting the words "or any other employer." 2
2. Paragraph 1(b) of the Recommended Order shall be modified
to read "In any like or related manner restraining or coercing em-
ployees of R. W. Hughes Construction Co., Inc., in the exercise of the
rights guaranteed in Section 7 of the Act."
3. Paragraph 2(b) of the Recommended Order shall be modified
to read "Make whole Mosko and Johnson for any loss of pay, as set
forth in `The Remedy,' as modified by the Decision and Order herein."
4. The first paragraph of the notice shall be modified by deleting
the words "or any other employer."
5. The second paragraph of the notice shall be modified to read
"WE WILL NI OT try to cause R. W. Hughes Construction Co., Inc., to
discriminate against any employees in any way that violates the Na-
tional Labor Relations Act."
6. The following sentence shall be substituted for the present first
sentence appearing below the signature at the bottom of the notice :
"This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material."
I The Trial Examiner recommended that Respondent Local 92 and Respondent Green, its
business agent, be required to make employees Mosko and Johnson whole for any loss of
pay they may have suffered as a result of their unlawful discharge However, in accord
with our usual policy, we shall not hold the business agent personally liable for backpay
Satehwell Electric Construction Company, Inc ., 128 NLRB 1265, 1280.
2In recommending a broad cease-and-desist order, covering conduct by the Respondent
directed against R W Hughes Consti action Co, Inc , "or any other employer," the
Trial Examiner relied on the fact that, in Rust Engineering Company ( Cases Nos . 10-CA-
3113 10-CB-628, 10-CB-620, and 10-CB-682, not published in NLRB volumes), involving
the Respondents herein, the Court of Appeals for the Fifth Circuit entered a consent de-
cree requiring the Respondents to cease and desist from causing or attempting to cause
any employer to discriminate unlawfully against its employees However, since in that
case the Board order and the court decree were based on a stipulation of the parties,
and the record there contains no findings of fact upon which a violation of the Act could
be predicated , that case in our opinion does not establish any proclivity on the part of
the Respondents to engage in conduct violative of the Act. We accordingly find no
warrant here for a broad cease-and-desist order and we shall limit the scope of the Order
herein to conduct by the Respondents directed against R W nughes Construction Co, inc
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , in which the charges were filed on December 18, 1961 , and the
complaint was issued on March 12 , 1962 , involves allegations that the Respondents,
Local No. 92 , International Association of Bridge , Structural and Ornamental Iron
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers, AFL-CIO, and C. H. Green, an officer and business agent for the Local,
violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended, 29 U.S.C., Sec. 151, et seq. On April 12, 1962, Trial Examiner A. Bruce
Hunt conducted a hearing at Birmingham, Alabama, at which the General Counsel,
the Respondents, and the Charging Party were represented by counsel. The Re-
spondent's motion to dismiss the complaint and the General Counsel's motion for
judgment are disposed of in accordance with the determinations below. Upon
the entire record, and from my observations of the witnesses, I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
R W. Hughes Construction Co., Inc., herein called the Company, is an Alabama
corporation which has its principal place of business in Birmingham and which is
engaged in structural steel construction and erection. During 1961, a representa-
tive period, the Company performed services in Alabama for Birmingham Stove and
Range Company and U.S. Pipe and Foundry Company, which services were valued
in excess of $50,000 and $17,000, respectively. Each of the two companies last
named annually ships goods valued in excess of $50,000 from its plant in Alabama
directly to points outside that State, and the service performed by the Hughes
Company were related directly to the out-of-State shipments. I find that the Hughes
Company is engaged in commerce within the meaning of the Act.
II. THE RESPONDENTS
Local No. 92, International Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, herein called Local 92, is a labor organization which admits
to membership employees of the Hughes Company. As admitted in the Respond-
ent's answer, C H. Green is an officer and business agent of Local 92.
III. THE UNFAIR LABOR PRACTICES
A. The issue
Our issue is whether , on December 13, 1961 , the Respondents invalidly caused
the Company to discharge David F. Mosko and Billy Johnson because Mosko was
not a member in good standing of Local 92 and because Johnson had not been
referred by Local 92 to the Company for employment. The Respondents did not
present evidence , and the basic question is whether the General Counsel made out
a prima facie case
B Facts and conclusions
The Company and Local 92 do not have a collective-labor agreement. On Decem-
ber 13, 1961, the Company's secretary and majority stockholder, Mrs. R. W. Hughes,
received a telephone call from a man who identified himself as Green, one of the
Respondents, and who spoke of two employees, Mosko and Johnson, saying that
Mosko had been suspended by Local 92, that Johnson had not been referred by
Local 92 to the Company for employment, and that the Company's project at
Birmingham Stove and Range Company, where Mosko and Johnson worked, would
be picketed unless the Company would discharge them Mrs. Hughes asked the
caller to withhold action until she could discuss the matter with the Company's
president, J. T. Lee, Jr., and the caller agreed to do so. She contacted Lee, told
him of the telephone conversation, and turned the matter over to him Lee talked
with Mosko and Johnson, explained what had happened, and discharged them.
The above findings concerning events on December 13 are based upon the reliable
and uncontradicted testimony of Mrs. Hughes and Lee. On that day, someone
surely telephoned Mrs Hughes and identified himself as Green. The Respondents
deny that Green was the caller. We turn to Mrs. Hughes' testimony in identifying
Green.
Mrs. Hughes had no doubt that Green was the caller. She had met him about
5 years ago and had had a number of conversations with him The weaknesses in
her identification of Green as the caller are that (1) she had not talked with Green
face to face but twice, the second time having been about 3 years before she testified:
(2) she could not remember distinctly having talked with Green on the telephone
more than three times and (3) she had not talked with him by telephone for 6 to
LOCAL 92, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 431
9 months before the conversation of December 13.1 On the other hand, her inability
to recall the subject matters of more than three telephone conversations with Green
does not warrant discrediting her testimony that there had been additional conver-
sations, the subject matters of which escaped her memory while she was on the
witness stand. Moreover, her telephone conversations with Green had not been
limited to instances in which he had called her, but included an occasion when she
had called him, and their conversation during the spring of 1961 involved not only
his request that the Company hire employees through Local 92, but also remarks
by him concerning the state of his health and the nature of surgery which he had
undergone.2 It is a reasonable inference, from Green's willingness to discuss with
her certain details about his health, that he and Mrs. Hughes were not strangers to
each other.
The basic question is whether the General Counsel made out a prima facie case
that Green was the caller. I am satisfied that the General Counsel did so, and I
have in mind particularly the following: that Mrs. Hughes was an honest witness,
that she had no doubt about the identity of her caller, that she had had opportunities
to become acquainted with Green's voice as it sounds over a telephone, and that,
while like opportunities may be inadequate to enable some people to recognize some
voices, it does not follow that the opportunities had been inadequate to enable Mrs.
Hughes to recognize a particular voice. The General Counsel having made out
a prima facie case, it then became "incumbent upon [the Respondents] to introduce
evidence" that Green had not called Mrs. Hughes on December 13 or else "assume
the risk of an adverse finding," Law, et al. d/bla E. B. Law and Son v. N.L.R.B.,
192 F. 2d 236, 238 (C.A. 10). The Respondents assumed that risk, and Green's
failure to testify "warrants the inference that he could not truthfully deny that he"
had been Mrs. Hughes' caller. Threads-Incorporated, 124 NLRB 968, 9713 1
find that Green telephoned Mrs. Hughes on December 13 and threatened to picket
the Company unless it would discharge Mosko and Johnson, that Green acted in his
capacity as an officer and business agent of Local 92, that the Company yielded
to Green's threat, that Green's conduct was not protected by a valid union-security
agreement, and that the Respondents thereby violated Section 8(b)(1)(A) and (2)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the
operations of the Company described in section I, above, 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.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I shall
recommend that they cease and desist therefrom and that they take certain affirma-
tive action designed to effectuate the policies of the Act. I shall recommend (1)
that the Respondents notify the Company, in writing, with copies to Mosko and
Johnson, that the Respondents have no objection to the employment of those men
by the Company or any other employer, and (2) that the Respondents make whole
Mosko and Johnson for any loss of pay they may have suffered as a result of the
Respondents' having caused their discharge, by payment to each of them of a sum
of money equal to that which he normally would have earned from the date of
the discharge, December 13, 1961, to a date 5 days after notification by the Respond-
ents to the Company, Mosko and Johnson as provided above, less his net earnings
(Crossett Lumber Company, 8 NLRB 440, 497-498) during said period, the payment
to be computed on a quarterly basis in the manner established in N.L.R.B. v. Seven-
Up Bottling Company of Miami, Inc., 344 U.S. 344.
' The 6- to 9-month period is fixed by her testimony that before December 13 she had
last talked with Green during the spring of 1961.
2 When Mrs. Hughes was asked how long the conversation lasted, she answered: "Well,
we went into details about his conditions [ sic] and his operations and where he had been
operated on the throat for his blood clot." She testified also, when asked what Green
had said about "his throat condition," that ". . . we were just discussing his health, and
he said he had to have these veins in here [indicating ], the blood drawn out of them
due to blood clots, and his health in general , and we were just discussing it."
8 At the time of the hearing , Green was hospitalized , but the Respondents ' counsel did
not move to take his testimony in the hospital or for an adjournment pending his recovery.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Charging Party, in his brief, points out certain earlier cases which involved
the Respondents and requests that they be required to cease attempting to cause
any employer to violate Section 8(a)(3). The request is sound. In Rust Engineer-
ing Company, et al., Cases Nos. 10-CA-3113, 10-CB-628, 629, and 682, during
1958 the Court of Appeals for the Fifth Circuit entered a consent decree in its
Case No. 17355 requiring the Respondents inter alia to cease and desist from caus-
ing or attempting to cause any employer to discriminate invalidly against employees
or prospective employees. An equally broad order should be entered here.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the followings
CONCLUSIONS OF LAW
1. Local 92 is a labor organization within the meaning of Section 2(5) of the
Act and C. H. Green is an agent thereof.
2. The Company is engaged in commerce within the meaning of the Act.
3. By causing the Company to discriminate against Mosko and Johnson in viola-
tion of Section 8(a)(3), the Respondents have engaged in and are engaging in un-
fair labor practices within the meaning of Section 8(b)(2) and (1) (A) and section
2(6) and (7).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that Local No. 92, Inter-
national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO,
its officers, agents, representatives, including C. H. Green, successors, and assigns,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause R. W. Hughes Construction Co., Inc., or any
other employer, their officers, agents, successors, or assigns, to discharge an employee
in violation of Section 8(a)(3) of the Act or otherwise to discriminate against em-
ployees in violation thereof.
(b) In any like or related manner restraining or coercing employees of any em-
ployer in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Notify said company, David F. Mosko, and Billy Johnson that the Respondents
have no objection to the employment of those men, in the manner set forth in
"The Remedy."
(b) Make whole Mosko and Johnson for any loss of pay as set forth in "The
Remedy."
(c) Post in conspicuous places in its offices and union hall, including all places
where notices to its members and other persons utilizing its employment facilities are
customarily posted, copies of the notice attached hereto marked "Appendix." 4
Copies of said notice, to be furnished by the Regional Director for the Tenth Region,
shall, after being duly signed by the Respondent Green and a representative of
Local No. 92, be posted by them immediately upon receipt thereof, and be main-
tained by them for at least 60 consecutive days thereafter Reasonable steps shall
be taken by the Respondents to ensure that said notices are not altered, defaced, or
covered by any other material
(d) Promptly after receipt of unsigned copies of said notices from the Regional
Director, return to him signed copies for posting, R. W. Hughes Construction Co,
Inc., willing, at all places where notices to the Company's employees are customarily
posted, including all sites where the Company will be engaged in construction work
during a period of 60 days after the date of the notices.
(e) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps each of the Respondents has taken to comply
herewith.5
4If this Recommended Order should be adopted by the Board, the words "As ordered
by" shall be substituted for "As recommended by a Trial Examiner of" in the notice
In the further event that the Board's Order be enforced by a United States Court of
Appeals, the words "Pursuant to a Decree of a United States Court of Appeals, Enforcing
an Order of" shall be substituted for "As ordered by."
In the event that this Recommended Order be adopted by the Board, this pros ision
shall he modified to read- "Notify said Regional Director, in,writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
SAM BELZ UPHOLSTERED PRODUCTS COMPANY, INC. 433
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS AND AGENTS, TO ALL EMPLOYEES OF
R. W. HUGHES CONSTRUCTION COMPANY, TO ALL WORKERS IN INDUSTRIES IN
WHICH LOCAL 92 ORGANIZES
As recommended' by a Trial Examiner of the National Labor Relations Board,
and in order to conduct the business of Local 92 as required by the National Labor
Relations Act, we notify you that:
WE WILL NOT try to cause R. W. Hughes Construction Co., Inc., or any other
employer, to discharge any employee because he is not a member in good
standing of Local 92 or because he was not referred to his job by Local 92.
WE WILL NOT try to cause any employer to discriminate against an employee
in any way that violates the National Labor Relations Act.
WE WILL pay David Mosko and Billy Johnson for the time they were out of
work as a result of our having caused R. W. Hughes Construction Co., Inc., to
discharge them, and we will notify that company and them that we do not
object to their working for any employer.
All our members in Alabama and all other workers in the industries in which we
organize in this State are free to join or remain members of our Union, and they
also are free to refrain from membership and other union activities
C. H. GREEN, BUSINESS AGENT, LOCAL No. 92, INTERNATIONAL Asso-
LOCAL No. 92 CIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS, AFL-
CIO,
Labor Organization
By---------------------- By-------------------------------------------
C. H GREEN (Representative) (Title)
Dated-------------------
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
If employees have any questions about this notice or whether Local 92 and its
business agent, C. H. Green, are complying with its provisions, the employees may
communicate with the Labor Board's office at 1203 Comer Building, 2026 Second
Avenue, North, Birmingham, Alabama, Telephone Number, Fa. 3-8011, Extension
677.
Sam Belz Upholstered Products Company, Inc. and United Fur-
niture Workers of America, AFL-CIO. Case No. 26-CA-1266.
September 5, 1962
DECISION AND ORDER
Upon charges duly filed on April 17, 1962, by United Furniture
Workers of America, AFL-CIO, herein called the Union, against
Sam Belz Upholstered Products Company, Inc., herein called Re-
spondent, the General Counsel for the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Twenty-sixth Region, issued a complaint alleging that Respondent has
engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (5) and (1) and Section
2(6) and (7) of the Act. Copies of the charge, the complaint, and
138 NLRB No. 60.