Mid-Valley Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1968

172 N.L.R.B. 1447 (N.L.R.B. 1968)

MID-VALLEY INC.
Mid-Valley Inc. and Victor E. White, Gasten E.
Pate, M. E. Ferrell, James O'Neill, A. V. Corley
Pipe Fitters Local Union No. 211, United Associa-
tion of The Plumbing and Pipefitting and Ap-
prentices Industry of the United States and
Canada , AFL-CIO and Victor E. White , Gasten
E. Pate , M. E. Ferrell , James O'Neill, A. V. Cor-
ley. Cases 23-CA-2849-1, 23-CA-2849-2,
23-CA-2849-3 , 23-CA-2849-4, 23-CA-2849-5,
23-CB-805-1 , 23-CB-805-2 , 23-CB-805-3,
23-CB-805-4 , and 23-CB-805-5
AUGUST 2, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 12, 1968, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceedings, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
memberpanel.
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 exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications:
We agree with the Trial Examiner's findings, for
the reasons set forth below, that Respondent, Mid-
Valley Inc., violated Section 8(a)(1) and (3) of the
Act by laying off 15 employees on September 29,
1967, because they were not members of Respon-
dent Union, Local 211, and that the Respondent
Union violated Section 8(b)(1)(A) and (2) of the
Act by causing the Respondent Company to take '
' Permit men pay monthly dues of $ 8 and quarterly fees of $1 25 for a
Building Trades card during their period of employment While the card
that is issued to a permit man states that the holder "is a member in good
1447
such action.
For some period of time prior to September
1967, Respondent Mid-Valley was engaged in con-
struction and maintenance work at the Houston
plant of Petro-Tex Chemical Company. It was Mid-
Valley's usual practice to hire pipefitters and wel-
ders through Local 211, although it was not con-
tractually bound to do so by an exclusive hiring hall
agreement. Respondent Union provided referrals
for three types of employees: its own members (col-
loquially known as bookmen), members of other lo-
cals (travelers), and nonmembers (permitmen).t As
of Friday, September 29, 1967, Mid-Valley had 46
pipefitters and welders working at the Petro-Tex
plant.
Word of an impending layoff of all permit men
was passed along by both a company and union
spokesman at various times on September 28 and
29. On the 28th, Pipe Superintendent (and General
Foreman) James McClure told pipefitter Victor E.
White and his welder-partner, A. V. Corley (both
permit men), that, according to White's credited
testimony, "they were planning an overtime job,
that they would probably want to lay us off, the
permit men, because of this overtime, but that he
didn't see any reason for it, that there was plenty of
work that we could do on a forty-hour basis." That
same week, McClure also discussed a layoff with
permit man M. E. Ferrell and his partner, traveler
Billy Bailey. Replying affirmatively to an inquiry by
Bailey as to the validity of rumors that permit men
would be laid off to make room for bookmen, Mc-
Clure added words to the effect that "the permit
men would have to go because the Union was forc-
ing them, they had men up there on account of this
bricklayer's strike they had, and they had a hall full
of bookmen that had to be placed on the job, and
the permit men had to be relieved so the bookmen
could get the job...... Also on the 28th, White saw
the Union's business agent , Fricks, along with
another union representative whom White thought
to be Business Manager Roberts, entering the office
of Project Superintendent Breaux . Later that day
Union Shop Steward Hanks commented to White
and Corley that Fricks had spoken with Breaux and
McClure and told Breaux "to lay off the permit
hands the following ev ening or bring hisseWf to the
hall." Finally, on Friday, the 29th, McClure in-
formed White and Corley that "later on in the day
we were going to be laid off because the men from
the Local had come out and demanded that we be
laid off."
standing" of the Union , it is clear from the testimony of Business Agent
Fricks that the cards are merely used as referral slips and that permit men
are not , in fact , members
172 NLRB No. 155
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prediction became reality at 3:30 p.m. Friday.
McClure told a meeting of 15 employees that he
was sorry to have to let them go but that "They left
[him] no alternative," he had no "choice in the
matter," and "maybe this thing would blow over
and he could have [the men] all back to work
shortly."2 He did not offer any explanation for the
Company's action and it does not appear that the
men requested one. Sometime during the meeting
McClure remarked to Corley (in Corley's words),
"I can't understand why they won't sell you a book
because you have been out here so long and you
have done good work, and I have talked to them
about selling you a book."
On October 5, four of the laid-off employees,
White, Pate, Ferrell, and O'Neill, each filed unfair
labor practice charges against the Respondents
herein. Thereafter, according to White, Pate, and
Ferrell, each received a letter dated October 11
from Mid-Valley President Osgood, denying the
charges and noting "we understand that Local 211
has also denied similar charges and told us that the
Union has no objection to your working for us."
The letter continued:
You were terminated on September 29th in a
reduction of force. Shortly thereafter more
work was available on the project and you
could have gotten back on when we called for
additional help. There is now a job available
for you on the Petro-Tex project which you
may have by applying without delay to Mr.
Breaux at the job site.
On Monday, October 16, Pate, Ferrell, and
White returned to work; Corley, who filed unfair
labor practice charges on that same day, went back
to work around the same time, in response to a
telephoned reinstatement offer from the Company's
bookkeeper. According to White's testimony,
O'Neill and Batterbee were also on the job some-
time in October.3
The complaint alleges, in part, that the 15 em-
ployees were selected for layoff solely because of
their nonunion status, in violation of those provi-
sions of the Act which proscribe discrimination
between union and nonunion members in a manner
that tends to encourage union membership. The
Respondents argue that the General Counsel has
not satisfied the requirement that all the laid-off
employees must be shown to have been permit
' This is White 's version of McClure's speech Ferrell , in testifying about
the meeting , reported that McClure said , " Boys , t hate to tell you this, but t
am sure you all know that you are being laid off this afternoon ," that the
matter was " beyond his control," had nothing to do with job performance,
and would , he hoped , be "settled" in a few weeks so the men could come
back to work Corley testified that McClure said he hoped things would
men. It is the contention of the Respondents that
employee White's testimony, relied on by the Trial
Examiner, that he "knew" all of the permit men on
the job is insufficient to support a finding that the
15 employees were indeed permit men.
That the layoff group consists of all nonunion
pipefitters (permit men ) is demonstrated, we find,
by several factors besides the testimony of White
(and the three other laid-off employees who
testified that they were permit men). Ferrell
testified, and his testimony was credited by the
Trial Examiner, that Foreman McClure, when
asked on September 28 about the validity of a
rumor that permit men would be laid off to make
room for bookmen, confirmed its truth and added
that the Houston union hall was pressing the Com-
pany to lay off the permit men because the hall was
crowded. Steward Hanks, according to the unde-
nied and credited testimony of White, told White
and Corley on September 28 that the Union's busi-
ness agent had directed the Company's superinten-
dent to lay off the permit men the following day.
Thus, both a union and a company representative
are credibly reported to have identified the em-
ployees in the layoff group as nonunion employees.
Moreover, McClure's reported remark to Corley
during the layoff meeting provides an unmistakable
clue to the basis of selection for the layoff. As
credibly repeated by Corley, McClure said he had
talked to the Union about selling Corley a "book"
and couldn't understand why the Union wouldn't
do so, since Corley had "been out here so long and
... done good work." (Corley had been on the job
for 23 months at the time of the layoff.) The im-
plicit meaning of this communication, we find, is
that Corley was in the layoff group because of his
nonunion status. From this fact and the other
evidence cited , it is reasonable to infer, and we do,
that nonunion status was the critical element which
set apart all members of the layoff group from
those pipefitters remaining on the job.
Whatever the Union's specific reasons were for
bringing about the layoff of permit men, whether to
replace permit men with union members or to give
overtime to union members, it is at least clear, and
we find, that the Union did cause the Company to
lay them off because of their nonunion status, and
that its action was violative of the Act for this
reason. As noted above, Steward Hanks told White
"clear up" in a short time so the men could come back to work.
' Respondent Company asserts in its brief that it sent the October 1 1let-
ters to all Charging Parties and sent similar written offers of reinstatement,
dated November 17, 1967, to the remaining 10 employees in the layoff
group Respondent does not further mention whether all of the offers were
accepted
MID-VALLEY INC.
and Corley , on September 28, that Union Business
Agent Fricks had visited Breaux and McClure earli-
er that day on the jobsite and had instructed the
former to "bring hisself to the hall" if the permit
men were not laid off the following day. Respon-
dent Company admits in its brief that a meeting
between Fricks and Breaux did take place as
described , but claims that nothing more than a
reduction in force was discussed . It is true, as
Respondent Union contends , that the record does
not disclose whether Hanks was present during the
meeting and , if not , how he heard of Frick's
directive . We do not agree with the Union 's argu-
ment that the only permissible inference to be
drawn is that Hanks heard of it from Breaux or Mc-
Clure , which would make his remark hearsay as to
the Union . Given Hank 's status as the Union's
jobsite representative , we find it reasonable to infer
that he was authoritatively reporting information
received from the Union in his official capacity as
its appointed agent.
Respondent Company contends that it laid off
the men in a reduction in force . It has offered no
evidence to support this contention . Other evidence
casts doubt on the Respondent 's assertion , further
supporting General Counsel 's allegation that the
layoff was effected to further several possible union
objectives . In the first place, McClure advised
White and Corley ( according to White ) on Sep-
tember 29 that they would be laid off later in the
day because the men from the local had come to
the site and demanded such action . Respondent
Company would not likely fabricate such a tale if
the simple reason for the layoff was a reduction in
force . Later that day, during the layoff meeting,
McClure made only cryptic comments about a
problem which he hoped would clear up, saying
nothing about a reduction in force . Also during the
speech , McClure indicated to the employees that
the Company would recall them if and when the
problem was resolved , yet, according to the Com-
pany 's letter of October 11 , it requested "additional
help" through the union hall when work became
available shortly after September 29. Finally, and
this is perhaps the most persuasive argument
against Respondent 's contention , McClure told
White and Corley on the 28th that " there was plen-
ty of work " available for pipefitters on a straight-
time basis.
As for the Union 's specific objectives in accom-
plishing the layoff of nonunion men, we have earli-
er stated our opinion that, although not clearly
established , certain testimony in the record suggests
that the Union hoped to open up jobs for an over-
4 Backpay as to these employees will be computed from September 29,
1967, the date of the discrimination against them , to the date of which they
1449
flow crowd of unemployed bookmen , who are the
Union 's prime concern , or perhaps intended to
replace permit men with union men so that the
latter could benefit from an assignment involving
overtime which the Company apparently expected
to receive . In any event , under the particular cir-
cumstances of this case , it is clear that the Union's
conduct in causing the layoff of nonunion em-
ployees , and in drawing the line on that basis, was
inherently discriminatory under the Act, regardless
of its specific objectives , and that the Employer's
knowing acquiescence in the unlawful demand was
itself unlawful under the Act.
THE REMEDY
We agree with the Trial Examiner that Respon-
dent Company and Respondent Union , both of
whom are responsible for the discrimination suf-
fered by the 15 employees, are thus jointly and
severally liable for making these employees whole
for any loss of pay suffered by reason of the dis-
crimination against them , according to the formula
set forth in The Remedy section of the Trial Ex-
aminer 's Decision . The Trial Examiner also recom-
mended , in addition to backpay , that Respondent
Company be ordered to reinstate the 15 employees
and that Respondent Union be directed to notify
the Company, in writing , with a copy to each of the
15 employees , that it had no objection to their rein-
statement . We find , contrary to the Trial Examiner,
that Respondent Company fulfilled its reinstate-
ment obligation to Ferrell , White , and Pate through
its written offer of October 11 , 1967, which they
received ( and accepted ), and to Corley by its con-
current telephoned offer of reinstatement ( also ac-
cepted ). 4 Respondent Company contends that on a
subsequent date it sent similar letters offering rein-
statement to the other 11 employees discriminatorily
terminated on September 29, 1967 . Accordingly,
we shall provide in our Order for deletion of the
reinstatement requirement (and consequent limita-
tion of the backpay requirement) as. to these 11
employees if Respondent 's contention , as well as
the fact that the offers were received, should be
established at the compliance stage of these
proceedings . We shall also modify the terms of the
Trial Examiner 's remedial directive governing the
Union 's notice of consent to reinstatement to take
account of the possibility that Respondent Com-
pany ultimately may not be required to offer rein-
statement to any of the 15 employees. The new
provision will require Respondent Union to write
the Respondent Company , with copies to the 15
were reinstated by Respondent Employer
354-126 O-LT - 73 - pt 2 - 20
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , that it has no objection to the em-
ployees ' reinstatement , if that is being ordered, or,
in the case of those employees as to whom Respon-
dent Company has already satisfied its reinstate-
ment obligation , to their future employment by the
Company.
CONCLUSIONS OF LAW
1. By laying off employees on September 29,
1967, because of their nonmembership in the
Union , the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(1) and ( 3) and Section 2(6) and (7)
of the Act.
2. By causing the Company to lay off employees
on September 29 in violation of Section 8(a)(1)
and (3 ) of the Act, the Union violated Section
8(b)(1)(A) and ( 2) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that:
A. Mid-Valley Inc., its officers , agents , succes-
sors , and assigns , shall:
1. Cease and desist from:
(a) Laying off employees , in compliance with a
union demand for any other reason, on the basis of
their nonmembership in a union.
(b) Encouraging membership in Pipe Fitters
Local Union No. 211, United Association of the
Plumbing and Pipefitting and Apprentices Industry
of the United States and Canada, AFL-CIO, by lay-
ing off or otherwise discriminating against em-
ployees for not being members of Local 211 or any
other union.
(c) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) Offer full reinstatement to their former or
substantially equivalent positions , without prejudice
to their seniority and other rights and privileges, to
the following employees, subject to the considera-
tions set forth in the section of this Decision enti-
tled "The Remedy":
N. A. Batterbee Layne Mitchell
E. A. Blomquist J. A. O'Neill
J. C. Hodge W . W. Payne
J. L. Humphrey M. R. Porta
S. B. Milani J . L. Taylor
Kenneth Tomlin, Jr.
(b) Jointly and severally with the above-named
Respondent Union , and in the manner set forth in
the sections of this Decision and the Trial Ex-
aminer 's Decision entitled "The Remedy," make
the 11 above -named employees , as well as em-
ployees A. V. Corley, M. E. Ferrell , G. E. Pate, and
Victor E . White , whole for any loss of pay they may
have suffered by reason of the discrimination
against them.
(c) Notify the above -named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the
Armed Forces.
(d) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying , all payroll records , social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its jobsite at the Petro-Tex Chemical
Company plant , Houston , Texas, copies of the at-
tached notice marked "Appendix A."5 Copies of
said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent Company 's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by. the
Respondent Company to insure that said notices
are not altered , defaced , or covered by any other
material.
(f) Post at the same places and under the same
conditions as set forth in (e) above , and as soon as
they are forwarded by the Regional Director, co-
pies of the Respondent Union's attached notice
marked "Appendix B."
(g) Furnish to the Regional Director signed co-
pies of the attached notice marked "Appendix A"
for posting by the Respondent Union in all its husi-
ness offices , meeting halls , and places where
notices to its members are customarily posted. Co-
pies of said notice , on forms provided by the Re-
gional Director , shall, after being duly signed by an
authorized representative of the Respondent Com-
pany, be returned forthwith to the Regional
Director for disposition by him.
s In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
MID-VALLEY INC. 1451
(h) Notify the Regional Director for Region 23,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
B. Pipe Fitters Local Union No. 211, United As-
sociation of the Plumbing and Pipefitting and Ap-
prentices Industry of the United States and Canada,
AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Mid-Valley
Inc., or any other employer, to lay off or otherwise
discriminate against employees in any way because
of their nonmembership in a union.
(b) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rigits under Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Jointly and severally with the above-named
Respondent Company, and in the manner set forth
in the sections of this Decision and the Trial Ex-
aminer's Decision entitled "The Remedy," make
the following employees whole for any loss of pay
they may have suffered by reason of the discrimina-
tion against them:
N. A. Batterbee
E. A. Blomquist
A. V. Corley
M. E. Ferrell
J. C. Hodge
J. L. Humphrey
S. B. Milam
Layne Mitchell
J. A. O'Neill
G. E. Pate
W. W. Payne
M. R. Porta
J. L. Taylor
Kenneth Tomlin, Jr.
Victor E. White
(b) Notify the Respondent Company in writing,
with a copy to each of the 15 above-named em-
ployees, that the Respondent Union has no objec-
tion to the reinstatement of said employees or, in
the case of those employees as to whom Respon-
dent Company has already satisfied its reinstate-
ment obligation, that the Respondent Union has no
objection to their employment by the Company in
the future.
(c) Post at conspicuous places in all of Respon-
dent Union's business offices and meeting halls co-
pies of the attached notice marked "Appendix B."s
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent Union immediately
upon receipt thereof. and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to mem-
bers are customarily posted . Reasonable steps shall
be taken by the Respondent Union to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Post at the same places and under the same
conditions as set forth in (c), above, and as soon as
forwarded by the Regional Director, copies of the
Respondent Company's attached notice marked
"Appendix A."
(e) Furnish to the Regional Director signed co-
pies of the attached notice marked "Appendix B"
for posting by the Respondent Company at its
jobsite at the Petro-Tex Chemical Company plant,
Houston , Texas, in places where notices to em-
ployees are customarily posted. Copies of said
notice, on forms provided by the Regional Director,
shall, after being duly signed by an authorized
representative of the Respondent Union, be
returned forthwith to the Regional Director for
disposition by him.
(f) Notify the Regional Director for Region 23,
in writing , within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
B In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT lay off employees in com-
pliance with a union demand or for any other
reason on the basis of their nonmembership in
a union.
WE WILL NOT encourage membership in
Pipe Fitters Local Union No. 211, by dis-
criminating against any employee for not
being a member.
WE WILL offer, if we have not already done
so, full reinstatement to these employees:
N. A. Batterbee Layne Mitchell
E. A. Blomquist J. A. O'Neill
A. V. Corley G. E. Pate
M. E. Ferrell W. W. Payne
J. C. Hodge M. R. Porta
J. L. Humphrey J. L. Taylor
S. B. Milam Kenneth Tomlin, Jr.
Victor E. White
WE WILL pay, jointly and severally with Pipe
Fitters Local Union No. 211, to the above-
1452 DECISIONS OF NATIONAL
named employees the earnings which they lost
as a result of our laying them off on September
29, 1967, plus 6 percent interest.
WE WILL notify the above -named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended,
after discharge from the Armed Forces.
MID-VALLEY INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If Employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 6617 Federal Office Building , 515 Rusk
Avenue, Houston , Texas 77002, Telephone
228-4296.
APPENDIX B
NOTICE TO ALL MEMBERS OF PIPE FITTERS LOCAL
UNION No. 211
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT cause Mid-Valley Inc., or any
other employer , to lay off or otherwise dis-
criminate against employees on the basis of
their nonmembership in a union.
WE WILL pay, jointly and severally with Mid-
Valley Inc., the following employees the
earnings lost as a result of their September 29,
1967, layoff, plus 6
N. A. Batterbee
E. A. Blomquist
A. V. Corley
M. E. Ferrell
J. C. Hodge
J. L. Humphrey
S. B. Milam
percent interest:
Victor E
Layne Mitchell
J. A. O'Neill
G. E. Pate
W. W. Payne
M. R. Porta
J. L. Taylor
Kenneth Tomlin, Jr.
White
LABOR RELATIONS BOARD
no objection to the reinstatement of these em-
ployees or , in the case of those employees as to
whom Mid-Valley Inc., has already satisfied its
reinstatement obligation , to their employment
by Mid -Valley Inc., in the future.
PIPE FITTERS LOCAL
UNION No. 211, UNITED
ASSOCIATION OF THE
PLUMBING AND
PIPEFITTING AND
APPRENTICES INDUSTRY
OF THE UNITED STATES
AND CANADA , AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 6617 Federal Office Building , 515 Rusk
Avenue , Houston , Texas 77002 , Telephone
228-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C . LADWIG , Trial Examiner: These con-
solidated cases were tried at Houston , Texas, on
December 19-20, 1967 ,' pursuant to charges filed
on October 5, 16, 30, and 31, by five individual em-
ployees against Mid-Valley Inc.,' herein called the
Company, and against Pipe Fitters Local Union No.
211, United Association of the Plumbing and
Pipefitting and Apprentices Industry of the United
States and Canada , AFL-CIO,3 herein called
the Union , and pursuant to a consolidation order
and complaint issued on November 8. Neither
the Company nor the Union called any defense
witnesses. The primary issues are (a) whether
the Union caused the Company to, and whether
the Company did, discriminatorily discharge 15
employees in violation of Section 8(b)(1)(A) and
(2) and 8(a)(1) and (3) of the National Labor
Relations Act , as amended, and, if so , (b) what
would be an appropriate remedy.
We will notify Mid-Valley Inc., in writing, with a = All dates, unless otherwise indicated , refer to the year 1967
The name of the Company was amended at the trial
copy to each named employee, that we have ' The name of the Union was amended at the trial
MID-VALLEY INC.
Upon the entire record , including my observation
of the demeanor of the witnesses , and after due
consideration of the briefs filed by the General
Counsel , the Company , and the Union , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Delaware corporation, has its
principal office in Houston , Texas, is engaged in the
business of a general contractor in the construction
industry, and receives annually goods valued in ex-
cess of $50,000 directly from outside the State. I
find that the Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and that the Union is a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overtime Expected
The Company was engaged in performing new
construction , and some maintenance , work at the
Houston plant of Petro -Tex Chemical Company.
On September 29 (the date of the 15 layoffs or ter-
minations in question ), the Company had 46
pipefitters and welders working in the plant on
several different jobs. These employees were
represented by the Union , which referred appli-
cants for employment upon request but which did
not have an exclusive hiring hall arrangement with
the Company.
The Union has a main office and union hall in
Houston , and branch halls in other cities , including
Texas City , Texas . It has about 4,000 members and
several thousand "permit men" working through its
union halls . Although nonmembers , these permit
men pay the regular union dues of $8 per month, as
well as the $1.25 per calendar quarter for a "Build-
ing Trades" card , during the time they are em-
ployed.
On September 28, 1 day before the terminations,
the Company advised employees that it was expect-
ing Petro -Tex to assign to it a "turnaround ," requir-
ing a large amount of overtime to minimize the
downtime for overhauling a unit or section of the
plant . Thus , according to the credited and undenied
testimony of pipefitter Victor E . White , Pipe Su-
perintendent ( or General Foreman ) James Mc-
Clure told White and welder A. V. Corley "that
they were planning an overtime job, that they
would probably want to lay us off , the permit men,
because of this overtime , but that he didn 't see any
reason for it , that there was plenty of work that we
could do on a forty-hour basis ." In explanation of
this testimony, White credibly testified that " it's the
general policy that no permit man works overtime,"
that the Union has the overtime , at double pay, as-
1453
signed to "book men" (members of the Local) and
to "travelers" ( members of other locals ), and that
the general practice was, "when overtime hit the
job all the permit men were gone ." (On cross-ex-
amination , White admitted that on one occasion
during the 10 months he worked for the Company
before September 29, he was not laid off when 1
hour of overtime was assigned , and that on another
occasion , he and one other permit man were per-
mitted to work overtime one Saturday with book-
men.)
Concerning who were permit men and who were
members , pipefitters White testified that "Every-
body on a job of this type knows the permit
men from the Local hands," and that "r know every
permit man on the job." In view of the disparate
treatment customarily accorded permit men when
overtime was to be assigned, I can understand why
employees , working for many months for the Com-
pany at the Petro -Tex plant, would be familiar with
who were permitted to work overtime and who
were not. Also, White appeared from his demeanor
on the stand to be an honest , forthright witness, and
I credit his testimony concerning common
knowledge about the matter . Therefore, in dis-
agreement with the Company and the Union, I find
that White 's and other testimony , in the absence of
any evidence to the contrary, sufficiently prove the
union membership status of the employees. Ac-
cordingly , I find that on September 29 there were
16 permit men working at the plant as pipefitters
and welders and that the remaining 30 were book-
men and travelers. (One of the 16 permit men,
Guy Hubbard, quit that same day.)
The complaint does not allege that the Company
separately violated Section 8 (a)(1) of the Act
through General Foreman McClure's statement
that the Union would probably want the permit
men replaced by bookmen (for the overtime at
double pay). I therefore do not rule whether Mc-
Clure's statement constituted an implied unlawful
threat that the Company would accede to a union
request, if made, to discriminate against the non-
union_ permit men because of their lack of union
membership . However , I have considered McClu-
re's statement in connection with the Company's
belated contention , discussed hereafter, that the 15
employees were laid off because of lack of work,
and also in connection with union motivation.
B. Visit by Business Agent
On September 28 (the day before the termina-
tions ), Business Agent Sherman Fricks and another
person ( believed by pipefitter White to be Business
Manager Mack C. Roberts ) were seen by White en-
tering the office of Project Superintendent William
Breaux at the plant . No one present in the con-
ference held in Breaux's office testified about what
was said.
Later that day, Union Steward George Hanks
told White and his welder , Corley, that Fricks had
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been on the job and talked to Breaux and McClure
and (in White 's words ) told Breaux " to lay off the
permit hands the following evening or bring hisself
to the hall." (General Foreman McClure was a
member of the Union . The evidence does not
reveal whether Breaux was also.)
The next day, Friday , September 29, General
Foreman McClure confirmed this union demand.
As credibly testified by White, McClure told White
and Corley " that later on in the day we were going
to be laid off because the men from the Local had
come out and demanded that we be laid off."
In these conversations with White and Corley,
neither the Union's steward nor the Company's
general foreman said why the Union made the de-
mand.
C. Termination and Blacklisting of Permit Men
About 3:30 p. m. on September 29, General
Foreman McClure announced the layoff . Speaking
only to the 15 permit men ( and to none of the 30
bookmen and travelers at the plant ), McClure said
he was sorry he had to let them go, that "they"
(referring to union representatives ) left him no al-
ternative-that " I don't have a choice in the
matter ." He expressed the hope that this "would all
blow over " so he could get them back on the job,
and stated that they had been good hands and he
hoped he could get them back in 2 or 3 weeks. Mc-
Clure commented to one of the permit men, welder
Corley, " I can't understand why they won 't sell you
a book because you have been out here so long and
you have done good work , and I have talked to
them about selling you a book ." McClure said
nothing about there being a shortage of work, as
later contended by the Company . ( One witness,
pipefitter G. E. Pate , recalled that McClure said
"he was sorry he was going to have to let all the
permit hands go, there was nothing he could do
about it , that maybe Johnnie 's business would get
straightened out and we could go back to work in a
week or so." According to this version , McClure
was making a direct reference to Johnnie Nelms, a
former business agent who had been expelled from
the Union 's International in July and for whom
many or all of the pipefitters at the plant had
publicly made a financial contribution to help in a
fight to recover his union book. Upon weighing this
version , along with the above -credited testimony of
other witnesses , I seriously doubt that McClure
made the direct reference to "Johnnie's business.")
All the permit men were laid off and all the union
members remained on the job.
The next Monday morning , October 2, several of
the terminated permit men went to the union hall in
Houston to seek referrals . Business Agent Fricks
advised them that there was no work for them, but
suggested that they go to the Union 's branch office
in Texas City (30 miles away ), where there was
plenty of work and men were needed.
Employee White immediately drove to Texas
City, where Business Agent Harold Grubbs con-
firmed that he needed men and started writing him
out a job referral to an oil plant . Grubbs ( in White's
words ) " had my name on the work order. And he
asked me where I had been working . I told him
Mid-Valley. He stopped writing , opened his desk
and pulled out a list of names , and asked me if my
badge number at Mid-Valley was 707. 1 told him
`Yes, Sir.' And he said , ` Well, I can 't send you
anywhere ."' The next day , Grubbs similarly advised
three of the other terminated permit men, Corley,
Pate , and M . R. Porta , that their names were on the
list, and that he could not send them out-that "if
we ever got out it would have to be out of the main
office in Houston ." The employees who saw the list
estimated that there were around 20, or between 15
and 20 , names on it . In glancing at the list (which
was not produced as evidence ), White read not
only his own name but also the names of several
other permit men terminated with him the Friday
before . ( No defense witnesses having been called,
this credited testimony about the list is undisputed.)
That Monday , after White returned from Texas
City, he went with Corley, Pate, and Porta to the
Petro -Tex plant , where they had General Foreman
McClure called to the gate to talk to them. They
told McClure about the list, and asked why they
were being blackballed . McClure said he had heard
about the list, but did not know who was on it.
The next day , October 3 , the same four permit
men talked to Project Superintendent Breaux out-
side the gate , and asked him if he knew what the
list was all about . Breaux said he had just come
from the union hall, had talked to Business Agent
Fricks , and "I believe the problem is all ironed out.
I believe you boys can go down and get your work
order and go to work ." ( Breaux did not specifically
offer to rehire these four permit men nor tell them
that work was again available at the Petro-Tex
plant . The company counsel brought out on cross-
examination that Breaux "didn 't say that he would
put us back to work .... He meant that we had al-
ready been refused work and he thought ... we
could get us a work order to go to ... any construc-
tion job that was going on on the [Houston ship]
channel.")
The employees immediately went to the union
hall in Houston and asked to speak to Business
Manager Roberts ( having been told by Fricks the
day before that there was no work for them). The
receptionist said that Roberts " will see you as soon
as he is not busy ." After about 2 hours , the recep-
tionist told them , " Mr. Mack Roberts will not be
able to see you now ," and that she did not know if
he would be in that afternoon . As the employees
were getting in their cars at the parking lot, they
saw Roberts leaving from the rear of the union hall.
Employee Pate approached him and asked, "What
about the list in Texas City?" Roberts' response
was, "I don 't know . You tell me something." Pate
said, " Well, I don't know . I am asking you."
Roberts responded, "Well, I can't help you."
MID-VALLEY INC.
On October 11 (after charges had been filed on
October 5 by four of the permit men against the
Company and the Union), the Company wrote each
of the 15 terminated employees a letter (with a
copy to an attorney in the Board 's Regional Of-
fice), stating that there was at the plant "now a job
available . which you may have be applying
without delay to Mr . Breaux at the jobsite."
D. Alleged Discriminatory Motivations
The evidence is clear that the Union caused the
Company to terminate the 15 permit men on Sep-
tember 29 . Both the Union 's agent (the job
steward ) and the Company 's agent ( the general
foreman ) made unequivocal statements a few hours
before the terminations , revealing that the union
had ordered the layoff of these nonunion em-
ployees.
In view of this undisputed evidence and all the
circumstances , the Company 's belated contention
that the employees were laid off because of an
economic reduction in force is an obvious af-
terthought . If that had been the real reason for the
terminations , General Foreman McClure undoubt-
edly would have specifically said so at the time.
Moreover , there is credited testimony that when
some of the 15 employees were rehired 2 weeks
later, they were assigned to work on a job which
had already reached the pipefitting stage and was in
progress when they were terminated . Also, in the
Company 's October I 1 letter to the 15 employees
(denying the Board Charges , and offering to rehire
them ), the Company admitted that it had called the
union hall for additional pipefitters " shortly" after
the so -called " reduction of force " on September
29. (The letters read, "You were terminated on
September 29th in a reduction of force. Shortly
thereafter more work was available on the project
and you could have gotten back on when we called
for additional help.") The Union does not deny
receiving this call for pipefitters shortly after the
purported economic layoff.
In its brief, the Company contends that "This is
fact " that General Foreman McClure explained to
the 15 employees on September 29 "that he hoped
and expected to have them back to work soon." The
Company does not comment why, if it did in fact
expect these employees back soon , the Company
did not recall them the next week , rather than send
a call to the Union for more men . ( In view of all the
circumstances , I regard as unrealistic the Com-
pany 's position in its brief that the four terminated
employees who spoke to Project Superintendent
Breaux on October 3 "missed their chance at reem-
ployment on the second working day after the
layoff" by not asking to see Business Agent Fricks
at the union hall, instead of trying to see his superi-
or, Business Manager Roberts, to get work orders.
This position assumes that Roberts was an unin-
formed, innocent bystander . Moreover , the Com-
pany admits elsewhere in its brief: "The fact that
1455
Mr. Breaux told the men on Tuesday , October 3
that they could go to the Union Hall and get a work
permit ... may not prove the Employer was offer-
ing these men reemployment on October 3.")
After considering all the evidence , I find that
there is sufficient proof to support both of the
motivations alleged in the complaint for the Union
causing the Company to terminate the permit men:
(1) because "such employees were not members of
the Respondent Union," and (2 ) because "such
employees had contributed to a fund for the
benefit , assistance and support of Respondent
Union 's former business agent , Johnnie Nelms."
These alleged motivations are discussed in that
order.
1. Discrimination against nonmembers
Pipefitter M. E. Ferrell credibly testified that it
"had been brewing for several weeks around the
yard there , that the hall was overloaded with book
men and the permit men were going to have to go
and be replaced by book men ." Finally, sometime
during the week that the permit men were ter-
minated , Ferrell 's welder , traveler Billy Bailey (who
was not laid off that Friday with the permit men),
asked General Foreman McClure ( in Ferrell's
words ) about " the rumors ... going around the
yard that the permit men were going to have to go
for the book men to take our places ." McClure
replied that yes , " the permit men would have to go
because the Union was forcing them , they had men
up there on account of this bricklayer 's strike they
had, and they had a hallfull of book men that had to
be placed on the job , and the permit men had to be
relieved so the bookmen men could get the job"-
that the Local " 211 Hall was crowding Mid-Valley
to put book men on out there ." ( Emphasis sup-
plied.)
Thus , according to this undenied testimony, the
Union had been requesting the Company to replace
the permit men with unemployed bookmen. Then
as previously found, on Thursday , September 28,
the Company informed two of the employees that it
was planning a turnaround ( which would require
much overtime at double pay ). That same day,
Business Agent Fricks went to the plant and or-
dered Project Superintendent Breaux "to lay off the
permit hands the following evening or bring hisself
to the hall." In its brief , the Company recognizes
the "General Counsel 's alternative theory that the
Union sought to favor members with overtime dur-
ing an anticipated turnaround ," and argues that
"the rumor of a turnaround was unfounded."
Similarly the Union argues, "It was not established
. . . that there was overtime ." But whether or not
Petro -Tex assigned the Company the turnaround
when planned , the evidence is undisputed that the
Company advised employees that week that it was
"planning an overtime job."
Under these circumstances , I find that the
Union 's undisputed demand on September 28 that
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Breaux "lay off the permit hands the following
evening" was for the Company to terminate the
permit men because of their nonunion status (to
open up jobs for the unemployed union members,
who then would be on the job to perform the up-
coming overtime at double pay). I therefore find
that the Union violated Section 8(b)(1)(A) and (2)
by causing the September 29 discharge of the 15
permit men "because such employees were not
members of the Respondent Union," as alleged in
the complaint, and that the Company violated Sec-
tion 8(a)(1) and (3) by discharging the 15 em-
ployees for the same reason.
2. Discrimination for supporting tormer business
agent
The motivation of discriminating against non-
union permit men, in order to give employment to
union members and to follow the Union's general
practice of having overtime assigned to members,
was evidently not the Union's only motivation for
demanding the termination of the permit men. For
some reason, the Union began blacklisting them on
Monday, October 2, 3 days before any of them filed
charges against the Company and the Union.
The undisputed evidence shows that about 2
months before the September 29 terminations,
about 54 pipefitters and welders at the plant (a few
more than the total work force on September 29)
contributed money and signed their names to a
contributors' list at the plant, to support a former
business agent , Johnnie Nelms, who had been ex-
pelled from membership in July. General Foreman
McClure and Job Steward Hanks were the first two
to sign the list. When employee Pate told McClure
that "I thought it would be best for the money
without the list ... that I knew it would get back to
the Local and they would lay off us because they
could, we were nonmembers," McClure responded
that Pate did not have to contribute, but if he did,
he had to sign his name. Pate told McClure he felt
that Nelms "was treated unfair," and proceeded to
make his contribution and to sign the list. When
employee Corley asked the purpose of the fund,
Hanks told him it was to help Nelms "get legal ad-
vice to try to get his book back." It was common
knowledge that Nelms had planned to run against
Business Manager Roberts in the next election, and
there was much talk among the pipefitters at the
plant that Nelms had been "framed" to keep him
from making the race. Employee White credibly
testified that he read the names on the list four or
five times before signing it himself, and that he be-
lieved all 15 of the terminated permit men signed
the list, although "I am not positive that each and
every one did." All four of the permit men who
testified had been referred by Nelms to the job (in
1965 and 1966). Each made a contribution and
signed his name to the list.
Relying heavily on the undisputed blacklisting of
these permit men, the General Counsel contends
that from all the circumstances, an inference should
be drawn that Business Manager "Roberts selected
only the permit men as a target because their ter-
mination served as a clear warning to other Nelms'
supporters and, being nonmembers, the permit men
could not retaliate through the Union." The Gen-
eral Counsel also argues that the permit men "were
blacklisted to completely remove them as a
potential threat to Roberts." The Union offers no
explanation for the blacklisting. The Company
makes the frivolous argument that "in all
likelihood, the list of Mid-Valley men was probably
a list Fricks had sent to Grubbs in connection with
his efforts to get the men placed in Texas City."
Such an explanation ignored the undisputed
evidence that Business Agent Grubbs, at the Texas -
City union hall, was in the process of referring
pipefitter White to another job when Grubbs found
White's name on the list and told him "I can't send
you anywhere." (I note that elsewhere in its brief,
the Company recognizes the import of the evidence
by offering to assume, for argument only, "That the
Union gave the employees the `run around' by
referring them to Texas City although the Union
had previously supplied Texas City a blacklist.")
In asserting that the General Counsel failed to
prove a connection between any such list and the
contributions for Nelms, the Company argues that
there is no evidence that the Union "ever had a
means of learning who had contributed," and the
Union argues that "there is no evidence of any
knowledge by the Union officials or officials of
Mid-Valley of the contributions." These arguments
ignore the status of the first two persons who signed
the contributors' list (McClure being the Com-
pany's general foreman and Hanks being the
Union's steward on the job), and also ignore the
strong circumstantial evidence.
After considering all the undisputed evidence
and the circumstances, I find that there is sufficient
evidence to support an inference, which I draw,
that the otherwise unexplained blacklisting of the
permit men was caused by their recent financial
support of Johnnie Nelms (who was an expected
opponent in Roberts' forthcoming race for reelec-
tion as business manager). Although arguing
against such an inference, the Union admits in its
brief that the "relevance of the testimony as to the
transaction with Grubbs would consist of whatever
bearing it might have on Union causation of the
layoffs on September 29." I agree that the evidence
of blacklisting has such a bearing, and further find
that the Union's blacklisting of the 15 permit men
supports the allegation in the complaint that one of
the Union's motivations for causing the Company
to terminate the permit men was these nonmem-
bers' contribution to the Nelms' fund.
Accordingly, I find that the Union procured the
discharge of the 15 permit men for their "activities
within the Union" (of making contributions to
Business Manager Roberts' expected opponent in
Roberts' forthcoming race for reelection), and that
MID-VALLEY INC. 1457
the Union thereby violated Section 8(b)(1)(A) and
(2) in causing the Company to discriminate in
violation of Section 8(a)(1) and (3) of the Act.
N.L.R.B. v. A. & B. Zinman , Inc., 372 F.2d 444,
445 (C.A.2, 1967).
CONCLUSIONS OF LAW
1. By discharging employees on September 29
because of their nonmembership in the Union and
because of their financial support of a political op-
ponent of the Union 's business manager , the Com-
pany engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1)
and (3 ) and Section 2(6) and (7) of the Act.
2. By causing the Company to discharge em-
ployees on September 29 in violation of Section
8(a)(1) and (3) of the Act, the Union violated Sec-
tion 8 (b)(1)(A) and (2) of the Act.
THE REMEDY
In this case a 4,000 -member Union-with
"several thousand permit men working out of the
union hall " during this wartime period-charged
the nonunion permit men $ 8 per month as union
dues and $1 .25 a calendar quarter for " Building
Trades " cards, yet induced the Company to
discharge 15 of them in order that union member
would be given the large amount of expected over-
time at double pay, and in order to get employment
for members when the hall was crowded. The
Union then blacklisted them from further referrals,
demonstrating that another reason for the Union's
causing their discharge was their contribution of
financial support to a political opponent of the
Union 's current business manager . In view of this
flouting of the Act, the Company's acquiescence,
and the undisputed evidence that the Union follows
on this job its well -known general practice of hav-
ing overtime ( at double pay ) assigned only to union
members , I find that mere reinstatement and
backpay would not be a sufficient deterrent of such
an invidious discriminatory practice in the future.
In order to effectuate the policies of the Act, I shall
also recommend that the Respondent Company and
Respondent Union be ordered to cease and desist
engaging in this practice of denying employees
overtime because of their nonunion status.
Although the Company offered to rehire the 15
employees about 2 weeks after their discriminatory
discharge on September 29, 1967, it did not offer
them full reinstatement , and the Union did not give
them referrals showing its consent to their return-
ing to work for the Company . I shall therefore
recommend that the Respondent Union be ordered
to give the Respondent Company written notice,
with a copy to each of the discharged employees,
that the Union has no objection to their reinstate-
ment ; and that the Respondent Company be or-
dered to reinstate the 15 employees to their former
or substantially equivalent positions, without preju-
dice to their seniority and other rights and
previleges . Having found that both the Company
and the Union are responsible for the discrimina-
tion suffered by the 15 employees , I shall recom-
mend that they be ordered jointly and severally to
make the employees whole for any loss of pay
resulting from the discrimination. Backpay and in-
terest thereon shall be computed in the manner
prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
[Recommended Order Omitted from Publica-
tion. ]