Millwrights Local Union No. 1454

National Labor Relations Board - Board Decisions

Feb 22, 1973

201 N.L.R.B. 993 (N.L.R.B. 1973)

MILLWRIGHTS LOCAL NO. 1454 993
Millwrights Local Union No. 1454 , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO (Mid-West Conveyor Company, Inc.)
and Frank C. Sizemore. Case 9-CB-2180-2
February 22, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On December 13, 1972, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and the Respondent filed a brief in
answer to the Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
The Charging Party also excepts to certain alleged errors in the Decision.
We find that the Administrative Law Judge made certain minor and
inadvertent errors in his findings of fact which do not affect the ultimate
result in this case . We correct the Judge's erroneous reference to the
testimony of Wear rather than that of Sizemore in alluding , in sec. III B of
his Decision, to what Sizemore 's union charges consisted of, and to his
describing the AMF bowling alley job as entailing the installation of such
alleys, noting that the nature of the bowling alley job was not particularized
in Sizemore 's testimony . We also correct the Judge' s mistaken reference that
it was Wear rather than Sizemore who Budig informed that the men
working on the job would be laid off after the "half-day."
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge:
Upon a charge filed on March 27, 1972, by Frank C.
Sizemore , an individual, the Regional Director for Region
9 of the National Labor Relations Board, herein called the
Board , issued a complaint on June 19, 1972, on behalf of
the General Counsel of the Board against Millwrights
Local Union No. 1454, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, herein called the
Union or the Respondent , alleging violations of Section
8(b)(1)(A) of the National Labor Relations Act, as
amended (29 U.S.C. Sec . 151, et seq.), herein called the Act.
In its duly filed answer , the Respondent , while admitting
certain allegations of the complaint , denied the commis-
sion of any unfair labor practices.
Pursuant to notice , the hearing in this case was held
before me at Cincinnati , Ohio, on October 11, 1972. All
parties were represented and were afforded full opportuni-
ty to be heard , to introduce relevant evidence , to present
oral argument and to file briefs . Oral argument was
waived . Briefs were filed by counsel for the General
Counsel and the Union . Upon consideration of the entire
record herein, and upon my observation of each of the
witnesses appearing before me , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Mid-West Conveyors Company, Inc., hereinafter called
Mid-West , a Kansas corporation with its main offices
located in Kansas City, Kansas, is engaged in the
manufacture and installation of conveyors throughout the
United States , including a location in Norwood, Ohio.
During the year immediately preceding the issuance of the
complaint herein , a representative period, Mid-West had a
direct inflow of goods and materials , in interstate com-
merce, valued in excess of $50 ,000, which it purchased and
caused to be shipped to its Ohio facility directly from
points located outside the State of Ohio.
It is admitted , and I find , that Mid-West is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find , that the Respondent is a labor
organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges, in substance , that Frank C.
Sizemore , a member of the Respondent Union, upon
requesting assistance in obtaining employment from
Joseph D . Wear, business representative of the Union, was
told by Wear that he would receive no assistance in
obtaining a job because he had opposed Wear for
reelection to the position of business representative or
business agent. The complaint further alleges that the
Respondent refused to assist prospective employees who
are members of the Respondent in obtaining jobs with
employers engaged in operation throughout the Respon-
dent's geographic jurisdiction because they opposed Wear
for reelection to the position of business representative.
The Respondent's answer generally denies this allegation.
Thus, the issues are joined.
However, the crux of the case is not so much one of law
201 NLRB No. 154
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but of fact, and, the basic issue becomes one of credibility,
whether Sizemore, the Charging Party, should be credited
or whether Wear, the Union's business representative,
should be credited in his denials of Sizemore's accusations.
B. The Events and the Testimony With Relation
Thereto
The Union does not have any contracts which give it
exclusive hiring hall privileges. As the record shows, the
Union, in fact, does not operate a hiring hall as such.
However, it is apparent from the testimony of all the
parties that the Union, when it can, does inform its
members of jobs open for millwrights in the Cincinnati and
other areas, and for approximately the last 2 years has
maintained an out-of-work list whereby the members of
the Union, who are not working, are listed so that they can
be notified when jobs open up. Additionally, this out-of-
work list is not operated on a first in and first out basis.
The manner in which it normally operates is that when an
employer needs millwrights in the Cincinnati area it may
notify the Union and usually, when doing so, asks for
certain millwrights by name. In such cases these mill-
wrights, if available, are notified by the Union and report
to the job. These individuals are normally the keymen on
the job and are selected as foreman. Then, as additional
millwrights are required the foremen notify the union
office which, in turn, contacts the individuals whom the
foreman names, if available, and who the foreman chooses
because of their particular skills such as welding, setting,
and climbing.'
Nor is there any mandatory requirement that an out-of-
work employee member of the Union placed his name on
the out-of-work list. The usual procedure is, however, that
he does so in either of two ways. When a man is laid off his
job the steward might notify the Union or the individual
himself might notify the Union and ask that his name be
placed on the out-of-work list.
Frank C. Sizemore, a millwright by trade and a member
of the Respondent since August 1966, testified that since
becoming a member he has always looked to the Union for
placement in jobs requiring millwright skills. Sizemore,
who is 56 years of age, admitted at the hearing that he
would not perform jobs which require climbing to any
substantial height. He also testified that although he can
weld, he is not a certified welder. Sizemore further testified
that although formerly he had been sent to jobs by the
Union, and in fact had obtained only one job as a
millwright in the Cincinnati area without assistance from
the Respondent since joining the Union in 1966, he has
been referred to almost no such jobs since he opposed
Business Representative Joseph B. Wear who ran for
reelection and won on June 17, 1971.
According to Sizemore, since that election, he began to
experience difficulty in obtaining assistance from the
I From the testimony of Ercie Snow and Joseph B Wear Although the
General Counsel argues that Snow should not be credited because he, in one
instance , said he did not know all of the members of the Union and in
another instance said that he knew the skills of all the 300 members of the
Union, and thus contradicted himself , a reading of the transcript in its full
context shows that when Snow testified he did not know all 300 members of
the Union he was referring to the fact that he did not know which of the 300
members of the Union were working or not working at any particular time
Union in finding millwright work. However, Sizemore did
admit that he did not campaign against Wear nor did he
inform Wear of his opposition to Wear's reelection nor, for
that matter, is there any showing anywhere in the record
that Sizemore told anyone that he opposed Wear's
reelection. Moreover, the vote was by secret ballot so that
no one could have known how Sizemore had voted.
Sizemore's work record, as testified by Sizemore, shows
that, indeed, work as a millwright in the Cincinnati area, at
least for Sizemore has been very spotty. In November 1970,
according to Sizemore he was called by Business Repre-
sentative Wear and sent to Middletown, Ohio, to work for
a Kaiser Engineering Company. Before that, in 1967
Sizemore worked at Cardinal Machinery in Covington,
Kentucky, and was notified of that job by Wear. The
record does not disclose how long Sizemore worked at
either of these jobs.2
After the election in June 1971 Sizemore was sent by
either Wear or Wear's secretary to work for a firm called
Erectioneers in August and Sizemore worked from August
19 to 22, 1971. Again, in the fall of 1971, the date of which
is not exactly fixed in the record, Sizemore was sent to a
job for a Budig Company at the Convention Hall in
Cincinnati. However, when Sizemore arrived at the job he
was not hired by Budig who told Sizemore that the Union
had "jumped the gun" and that all Budig had was a half-
day's work at that time. Budig informed Wear that the men
who were working on that job would be laid off after the
half day, but, that Budig would inform Sizemore directly if
he needed him later on. Approximately a week later Budig
called Sizemore and asked him to report to work. However,
Sizemore could not do so because of a death in his family.
In the latter part of December 1971, according to
Sizemore , he called Wear and asked the latter why
Sizemore was unable to obtain work. According to
Sizemore, Wear answered, "Maybe you tried to get me
beat. I like my job and you tried to get me beat. I don't
give a G-D- if you never go to work. Why should I give
a man a job that tried to get me beat."
Thereafter, Sizemore testified , on January 17, 1972,
Sizemore attended a meeting at the union hall. The
recording secretary read minutes of a January 3 meeting,
which Sizemore had not attended, and said that at that
meeting a business agent from Chattanooga, Tennessee,
had called the Union and asked for 12 men and that Wear,
after extensive telephone calls, had been unable to find
men to fill the job. Sizemore testified that this was the first
time he had heard about the job and had never been
contacted by Wear.
On January 18, the day after the foregoing union
meeting, Sizemore called Wear and asked the latter about a
job that he had heard was being started by Mid-West
Conveyor at the Chevrolet plant in Hartwell. According to
Sizemore, one of the union members had told Sizemore
Accordingly, I credit Wear because his testimony is supportive of that of
Snow
2 Although the Respondent representative , Wear at one point did testify
from the Respondent 's records that Sizemore worked for Kaiser Engineer-
ing in June and July 1971, he admitted that he could have been mistaken
and that probably it was 1970 during which Sizemore worked for Kaiser
Engineering
MILLWRIGHTS LOCAL NO. 1454
about the job and also informed Sizemore that the Union
was referring men to the job. However, Sizemore did not
name the union man who had told him about the job.
When Sizemore asked Wear if the latter could send
Sizemore to the Mid-West Conveyor job, Wear repeated
what he had told Sizemore at the earlier date, namely, that
Sizemore had tried to beat him and why should he get a
man a job that tried to beat him. Wear further stated that
he did not give a G-D- if Sizemore ever went to work
and that if Wear had a job in Tiajuana, Mexico, he would
send Sizemore to it. When Sizemore asked Wear why the
latter had not notified Sizemore about the Chattanooga
job, Wear did not reply. Despite this alleged animosity on
the part of Wear against Sizemore, on February 16, 1972,
Wear called Sizemore and informed him about an
underscale maintenance job in Louisville, Kentucky.
However, Sizemore refused this job because he had been
elected an officer in a fraternal lodge and felt that he
needed to be in the Cincinnati area in order to carry out his
duties as such officer.
Thus Sizemore admitted that he had turned down the
job. However, according to Sizemore, Wear replied, when
Sizemore turned down the job, that Wear did not give a
damn whether Sizemore ever want to work again.
Thereafter on February 25, 1972, Sizemore preferred
charges against Wear to the International of the Mill-
wrights through the District Council of the Ohio Valley
Carpenters. The record does not reveal what these charges
contained except to the effect that at one point Wear stated
.,now I, of course, realize that it would be quite impossible
to obtain witnesses from the recipients of Wear's favors for
those are the select group of fat cat and boot licking,
brown-nosed parasites that he has packed the local with
since he himself infiltrated the local a few years ago."3
Thereafter, as noted above, on March 22, 1972, Sizemore
filed the charge in the instant proceeding.
Despite Wear's alleged attitude toward Sizemore and
Sizemore's filing of intraunion charges and the charge with
the Board, in late April or early May 1972, Wear's
secretary called Sizemore and informed him of a job with
A M F installing a bowling alley in Cincinnati. Also,
during the spring months of 1972, when Sizemore could
not obtain work as a millwright in the Cincinnati area he
went on his own to Pittsburgh, Pennsylvania, and worked
as a millwright out of the Pittsburgh local. From there he
went to Detroit, Michigan, and worked as a millwright out
of a local in Detroit.
The foregoing, then, is the substance of the testimony
given by Sizemore in support of his charge and the
complaint of the General Counsel.
Counsel for the General Counsel presented one further
witness, Edward John Bross. Bross' testimony, in sub-
stance , was that in order to obtain a job as a millwright in
the Cincinnati area he had to get it through the Union. He
further stated that when he was laid off a job he informed
the union office. Bross further testified the job steward
turns the names of the men who are laid off into the office.
He stated that he worked for Mid-West conveyor begin-
ning January 17, 1972, at the Chevrolet Fisher Body Plant
3 It should be noted that Wear was the business agent of the Respondent
before Sizemore ever became a member of the Respondent . This is
995
at Norwood . According to Bross, there were 18 to 22
millwrights on that job. The Mid-West conveyor job lasted
from January 17 to February 22, 1972. Bross also testified
that he worked one day on October 11, 1971, at Clark
Trucking and was sent there by Wear. Bross did not testify
that he either opposed or supported Wear in the June 1971
election.
Bross did admit, in testifying, that for the sixth month
period prior to the hearing he had only worked for a total
of 26 days . In the past year , he testified , he has not worked
at any job not referred by the Union. Bross claimed that it
is a requirement to go through the union hall to be hired
but then admitted that this requirement was never posted
nor is it in the bylaws of the constitution of the Union.
Bross also testified that although an employer can ask the
Union to send a man by name that things do not work that
way. He cited a case in which a foreman told him that the
foreman had called for Bross a half dozen times at the
union office but the Union did not send Bross out.
In substance , then , Bross merely testified that the jobs in
the Cincinnati area in the millwright trade had to be
obtained through the Union . However, he further admitted
that this was not a written requirement . Bross, however,
admitted that he had worked almost as little as had
Sizemore during the period since the election and yet there
is no claim or showing by the General Counsel that Bross
opposed or supported Wear or that anyone in authority in
the Union had any knowledge of Bross' sentiments with
regard to Wear's continuing as business representative of
the Union.
The foregoing testimony of Sizemore and Bross consti-
tutes the General Counsel 's case . It should be noted, in
connection with Sizemore's testimony that on cross-exami-
nation, in certain instances he seemed to be quite evasive,
and to a certain extent contradicted himself.
Wear emphatically denied , in his testimony , that he ever
told Sizemore that he would not help the latter get a job
because Sizemore wanted to "beat him ." Wear further
denied that he had ever told Sizemore , in any manner
whatsoever, that he would not help Sizemore obtain a job.
Wear's continued testimony purports to show that up
until approximately 2 years before the hearing herein there
had been an abundance of work for members of the Union
but that, thereafter , the boom in the millwright trade had
fallen off and that work had become very scarce for
millwrights in the Cincinnati area . He further testified that
the Union had not had an out-of-work list until the end of
the boom and since that time , until the date of the hearing,
out of the approximately 300 members of the Union there
were always at least 25 percent on the out-of-work list. He
further testified that for the most part, especially since jobs
had become so scarce , employers were requesting mill-
wrights by name and that the Union, whenever possible,
sends to the employer the members who are so requested.
Additionally , Wear testified that the employers normally
request men of certain skills and that climbing and welding
are among the skills most requested . Wear also testified
that millwright work was seasonal . When asked about this
Sizemore was at first evasive and then admitted the fact to
interesting in view of the fact Sizemore accused Wear of infiltrating the
Local.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be true. Finally, Wear testified that until the charges filed
in the present proceeding he had no knowledge that
Sizemore had voted against him in the election held in June
1971, and that, in fact, he had no way of knowing
Sizemore's opposition to him?
Wear's testimony with regard to the scarcity of jobs and
also with regard to the fact that employers within recent
times requested millwrights by name and certain skills is
supported by the testimony of Respondent's witnesses
Ercie Snow and Gerald A. McClanahan. McClanahan
testified that he had been a member of the Union for 21
years and, upon occasion, acted as job steward. In the fall
of 1972 he was steward at the job at the convention hall for
the George Budig Company. He knew that Sizemore was
referred to the job but did not work. However, McClana-
han could not state in testifying why Sizemore was not put
to work. McClanahan further testified that he has been
frequently on the out-of-work list in the past 2 years. This,
despite the fact that he was an open supporter of Wear at
the election. McClanahan also testified that within the past
year the few jobs he has had have been short, lasting no
more than 2 or 3 days, and some of these were as a welder.
Ercie Snow also testified in the same vein, and further
testified that the jobs he had obtained in the last few years
he had obtained without the help of the Union. He testified
that it was not necessary to go through the umon hall in
order to obtain a position. Snow further testified that he
was foreman on the Mid-West Conveyor job that lasted
through February and into March 1972. As a foreman,
Snow called and asked Wear, or Wear's secretary, for
specified men to see if they were on the out-of-work list. If
these men were not available Snow then asked the
secretary to read him the out-of-work list so that he could
select from the list the men whom he knew had the skills
that were required for the work. Snow further testified that
after 25 years as a member of the Union he knew the men
and the skills they possessed. He stated further that he, as
foreman, tries to get the best man in each category required
and, if possible, men who can perform well in several
different categories. On cross-examination Snow testified
that when he called the union office for the Mid-West
Conveyor job he did not pay any heed to seniority on the
list but chose the men based on the skills that were needed.
C. Concluding Findings
As stated above, the crux of this case is whether
Sizemore or Wear should be credited with regard to the
alleged conversations in which Wear allegedly told
Sizemore that he would not help the latter to obtain a job
because Sizemore had tried to beat Wear in the election.
I note that Sizemore admitted, in testifying, that he did
not openly or actively, in any manner campaign against
Wear or, for that matter, inform any union official of his
opposition to Wear. The record is devoid of any testimony,
or any other form of evidence, that Sizemore told anyone
that he opposed Wear in the election. All the record reveals
is that Sizemore voted against Wear in a secret ballot
election in which Wear could not have known how
4 In this respect I find that Wear was somewhat inaccurate inasmuch as
he must have known that Sizemore at least was nursing a grievance against
Sizemore voted. Furthermore, I note that, despite the
testimony of Sizemore to the effect that Wear told him
Wear would not assist Sizemore in obtaining a job because
the latter had tried to beat Wear in the election, shortly
after this conversation occurred, on February 16, 1972,
Wear informed Sizemore of a job opening in Louisville,
Kentucky. This does not square with the alleged action of
Wear to the effect that shortly before that he told Sizemore
that he would not help Sizemore obtain a job under any
circumstances. Also this call from Wear to Sizemore came
before Sizemore preferred charges against Wear with the
Carpenters District Council or the Board.
Additionally, I note that even General Counsel 's witness
Bross testified that he had obtained few jobs through the
Union since the 1971 election. Moreover, McClanahan, an
active supporter of Wear, had no more work, or very little
more work through the Union, than did Sizemore.
Additionally, although Sizemore and Bross testified that in
order to obtain a job a member had to go through the
Union, Sizemore himself did obtain jobs without the help
of Wear or the Union, although, admittedly, away from the
Cincinnati area . Additionally , Sizemore admitted he would
not climb and that, although he could weld, he was not a
certified welder. The record substantially establishes that
this lack of qualifications was sufficient to prevent
Sizemore from obtaining work , especially in view of the
uncontradicted testimony of Wear and others that in the
past few years prospective employers had asked for
employees by name and by certain skills . I find nothing in
the testimony of either Snow, Wear or McClanahan to the
effect that this request by employers of specific individuals
and skills was not the practice within recent times in the
Cincinnati area.
By reason of all of the foregoing I find and conclude that
I cannot credit the testimony of Sizemore with regard to
his claim that Wear informed Sizemore that he would not
assist him in any manner in obtaining a job because
Sizemore had tried to "beat" Wear in the election. I am
convinced, on the basis of the record as a whole, that Wear
did not make these statements to Sizemore. Moreover, I
find insufficient support in the record for the General
Counsel's allegation that Wear had discriminatorily re-
fused to assist Sizemore in obtaining work . The General
Counsel has failed to prove by a preponderance of the
credible evidence that there was disparate treatment of
Sizemore by Wear as compared to any other members of
the Union, whether these members were for or against
Wear in the election.
Accordingly, I find and conclude on the basis of the
record as a whole and from my observation of the
witnesses as they appeared before me, that the General
Counsel has failed to prove by a preponderance of the
credible evidence any of the allegations of the complaint
which allege unfair labor practices within the meaning of
Section 8(bXl)(A) of the Act. Accordingly, I shall
recommend an order which dismisses the complaint.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
him when on February 25, 1972 , Sizemore filed intraunion charges against
Wear with the District Council of the Carpenters Union
MILLWRIGHTS LOCAL NO. 1454 997
CONCLUSIONS OF LAW
1. Mid-West Conveyor Company, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not restrain and coerce mem-
bers in the exercise of rights guaranteed them in Section 7
of the Act and in violation of Section 8(bx1)(A) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(b) of
the Act I hereby issue the following recommended:
ORDER
It is hereby ordered that the complaint filed herein be
dismissed in its entirety.