Peterson Construction Co., Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1953

106 N.L.R.B. 850 (N.L.R.B. 1953)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PETERSON CONSTRUCTION COMPANY, INC. and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL.
Case No. 39-CA-244. August 24, 1953
DECISION AND ORDER
On May 7, 1953, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in certain unfair labor
practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
commited. The rulings are hereby affirmed. The Board has
considered the Intermediate Report , the Respondent ' s excep-
tions and brief , and the entire record in this case , and finds
merit in the Respondent ' s exceptions to the extent set out below.
1. The Respondent excepts to the Trial Examiner ' s findings,
and moves that the complaint be dismissed, on the ground that
no charge was filed and served upon it within 6 months of the
alleged violations, as required by Section 10 (b) of the Act. i
The original charge was filed against "Ole Peterson , Inc." on
November 13, 1951, about 1 month after the alleged unfair labor
practices, and the amended charge, changing the name to the
Respondent , " Peterson Construction Co., Inc.," was filed over
6 months later , on May 19, 1952 . Both charges were addressed
to the respective companies not only at 2301 Wayside, Houston,
Texas, where the two companies have their headquarters, but
also in care of the Alcoa plant at Port Lavaca, Texas. At this
latter address , a copy of each charge was served on Secretan,
secretary -treasurer of both companies . The original charge,
like the amended charge , indicated on its face that "construc-
tion" was the nature of the Respondent Employer's business,
and "approximately 24" was the number of employees. Only
the Respondent , a construction corporation , was engaged in
work at the Alcoa plant; the other company, a pile-driving
corporation , was dormant, with no employees.
On November 15, 1951, Secretan wrote the Houston office of
the Board, on letterhead stationery of "Ole Peterson In-
corporated," acknowledging receipt of the copy of the original
charge , and stating that the case was being referred to its
attorney (who, as the record indicates, was also Respondent's
attorney) and that "you may expect to hear from him within
the next few days." On April 16, 1952, 6 months and 5 days
after the date of the alleged discrimination in hiring on October
'Section 10 (b) provides: "That no complaint shall issue upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is made......
106 NLRB No. 143.
PETERSON CONSTRUCTION COMPANY, INC. 851
11, 1952, the attorney advised the field examiner, by letter,
that the wrong corporation had been named in the charge.
It is clear from these facts, and the Respondent does not
deny, that the Respondent had notice of the charge within the
prescribed period. Furthermore, the Respondent makes no
contention that it was in any way misled or otherwise pre-
judiced by the proceedings relative to the original charge.
Its position would thus appear to be that actual notice was not
to be equated to legal notice and that it was entitled to the
latter. We cannot subscribe to the Respondent's views. Where,
as here, the error is one of misnomer and the proper Re-
spondent has actual notice of the charge and of the obvious
misnomer, to hold that the statutory requirements of service are
not met is to project legalism to an unwarranted length. Accord-
ingly, we find that the charge was timely filed and service was
made upon the Respondent within the meaning of Section 10 (b)
of the Act. 2 We shall deny the motion to dismiss on this
ground.
2. The Trial Examiner found that J. P. Black, W. A. Elmore,
and J. D. Elmore were refused employment by the Respondent
"because they had not cleared through, or had not been re-
ferred by" the Carpenters union. This finding was based on the
credited testimony of complainant Black who testified that
when he and the Elmore brothers applied on Gctober 11, 1951,
for millwright jobs at the Port J avaca job site, they talked with
the Respondent' s general superintendent, Griffith; that Griffith
said that no millwright jobs were then available but that he
would like to have them on the job, and told them to "go clear
in with" Shorty Echols, the Carpenters' business agent at Corpus
Christi; and that complainant Black raised the question of the
Texas law,' and Griffith replied: "All I do when I want men is
call Shorty and I don't give a damn how he gets by with the law. "
Thereupon, the three applicants left and returned to Corpus
Christi. They did not seek union clearance, and were not hired
when the millwright jobs became available on and after Novem-
ber 6, 1951. As further basis for the finding that clearance or
union referral was a prerequisite to being hired on the job, the
Trial Examiner cites the testimony of Brown, the Respondent's
vice president, that upon Echols' request, he supplied Echols
with application forms before the job began.
There is other evidence, however, which militates against
such a finding. On cross-examination, complainant Black and
each of the other two complainants denied that they were advised
2 Compare the following cases in which courts, in analogous circumstances, have ruled
that statutory requirements for the service of process to toll the running of statute of
limitations have been satisfied: Williams v. Pennsylvania R. Co., 91 F. Supp. 652; Godfrey
v Eastern Gas & Fuel Associates, 71 F. Supp. 175; and Hartford Accident & Indemnity Co
v. Interstate Equipment Corporation, 74 F Supp. 791.
3 The reference was to the Texas "Right to Work" Act, which reads, in part: "No person
shall be denied employment on account of membership or nonmembership in a labor organiza-
tion." Article 5207a, Texas Revised Civil Statutes.
322615 0 - 54 - 55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they would be refused employment unless they obtained
clearance from the Union. 4 They testified:
Q. Did he [Griffith] tell you he would not hire you if
you didn't clear in with Shorty?
A. [By Black] No, I didn't ask him that.
Q. Did Mr. Griffith tell you that unless you did get
cleared in with the local you couldn't go to work on the
job?
A. [By W. A. Elmore] No, sir.
Q. . . . did Mr. Griffith tell you and the other two
gentlemen that unless you did clear in with Shorty Echols
that he would not put you to work on that job?
A. [By J. D. Elmore] No, sir.
The record also shows that the complainants did not make any
further effort to secure employment, either by returning to
the job site to apply when jobs were available, or by sub-
mitting written applications. Furthermore, there were an
estimated 100 to 150 written applications for the millwright
work, and only 55 millwrights hired. There is also no showing
that any or all of the 55 were members of, or referred by, the
Carpenters union.
Considering these additional facts and the record as a whole,
we conclude that the evidence does not preponderate in favor of
a finding that the complainants were discrimatorily refused
employment by the Respondent. Accordingly, there is no basis
for a finding that Respondent violated Section 8 (a) (3) and (1) as
alleged in the complaint. We shall therefore sustain the Re-
spondent's exceptions on this ground, and shall dismiss the
complaint in its entirety.'
[The Board dismissed the complaint.]
4 There was no discussion in the employment interview about union membership, and there
is no evidence that General Superintendent Griffith had any knowledge of complainant Black's
having been fined by the Carpenters, or of the complainants Elmores' IAM union affiliation.
5 We find it unnecessary to pass on the reasoning of the Trial Examiner that an employer's
requirement that applicants be referred by a union is violative of the Act, absent evidence
that the union unlawfully discriminated in supplying the employer with personnel.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations Board, and
an answer having been filed by the above-named Respondent Company, a hearing' involving
allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Houston,
Texas, before the undersigned Trial Examiner, on December 9 and 10, 1952.
'By order of October'3, 1952, General Counsel consolidated this proceeding with others.
(39-CB-19, 20, 24, 26, 29, 30, 31, 39-CA-202, 205, 206, 225, 266, and 207.) At the opening
of the hearing this proceeding was severed, upon motion by General Counsel.
PETERSON CONSTRUCTION COMPANY, INC. 853
In substance the complaint alleges and the answer denies: (1) That on or about October11,
1951, the Respondent discriminatorily refused to hire W. A. Elmore, J. D. Elmore, and J. P.
Black because of their membership in IAM and /or because they refused to join or assist the
Carpenters , and (2 ) thatbysuchrefusaltheRespondent interfered with, restrained , andcoerced
employees in the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented , were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce evidence pertinent to the issues , to argue
orally upon the record , and to file briefs and proposed findings of fact and conclusions of law.
A brief has been received from the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , made at the close of the
hearing, is made by the following findings , conclusions , and recommendations.
Upon the entire record in the case , and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Peterson Construction Company, Inc., is a Texas corporation having its principal office
and place of business in Houston, Texas, whereit is engaged in all types of heavy construction
work. At all times material herein the Respondent was engaged near Port Lavaca, Texas, in
the construction of power plant lines and aluminum pot lines for the Aluminum Company of
America, a multistate corporation. The valueofservices and materials furnished and supplied
by the Respondent in this construction for the Aluminum Company of America exceeded more
than $50,000 a year.
For the purposes of this proceeding the Respondent concedes that it is engaged in commerce
within meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, AFL, and Local 1423, United Brotherhood of Car -
penters and Joiners of America, AFL, are each labor organizations within the meaning of
Section 2 (5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
The issues of this case are simple and few. In substance the major question of fact is
whether or not three applicants for work were required by a responsible management official
to "clear," before being employed, "through" a Carpenters' local. The question of law is
whether or not, if such requirement was made, the Respondent violated the Act by discrimi-
nating in regard to hire, thereby encouraging membership in the Carpenters.
There is no real dispute that: (1) On October 11, 1951, three capable applicants for mill-
wright jobs J. P. Black, W. A. Elmore, and J. D. Elmore, appeared at the Respondent's Port
Lavaca job site with their tools and ready for work; (2) together they asked James S. Griffith,
general superintendent, for employment; and (3) Griffith told them he would like to have them
on the job. The preponderance of credible evidence establishes, and the Trial Examiner finds,
that Griffith told them to "go clear in with" Shorty Echols, business agent of Local 1423 at
Corpus Christi, Texas, and that Echols had the application forms issued by the Company.2
2 Griffith's denial that he told them they must first clear through Echols is not credited,
nor is his testimony believed that he told them he had applications there on the job site which
they could fill out, Byron E. Brown, vice president of the Respondent, testified that before
the job began, he supplied Echols with company applications for employment. Applicant
Black's testimony is undisputed that when he raised the question of the Texas (closed shop)
law, after being told to see Echols, Griffith replied: "All I do when I want men is call Shorty
and I don't give a damn how he get's by with the law." Griffith, according to his own testi-
mony, was the only one hiring millwrights on the job. Although at first he said he had no
applications from persons sent him by Echols, he later admitted that from the application
forms he could not tell whether or not Echols had sent the applicants to the job, nor did the
Respondent offer any credible evidence to rebut the reasonable inference, drawn from Brown's
admission that Echols had been supplied with application forms before any hiring and from
Griffith's above- quoted statement as to his hiring policy, that all millwrights hired by the
Respondent had "cleared" through Local 1423.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of the three applicants was a member of the Carpenters at that time . They did not
"clear through" Echols and were not hired by the Respondent , although evidence compiled
from its records establishes that by November 7, 1951, three other millwrights were hired
for jobs which Black and the Elmores were qualified to fill. The Trial Examiner concludes
and finds that these three applicants were refused hire on November 7, 1951 , because they
had not cleared through, or had not been referred by, Local 1423.
As to the question of law , the facts lead inescapably to the conclusion , and the Trial Ex-
aminer so concludes , that applicants Black and the two Elmores were discriminatorily re-
fused hire by requiring as a condition of employment their membership 3 in the Carpenters,
and that thereby the Respondent encouraged membership in that organization and interfered
with rights of employees guaranteed by Section 7 of the Act. By such discrimination and
interference the Respondent violated Section 8 (a) (3) and (1) of the Act.
While it is true thaton October 11 , 1952 , no jobs were apparently and immediately available,
the Respondent is not relieved of its liability herein . As the Board has said , "where an employ-
er maintains a generally applicable illegal hiring policy (as is true here ), we will not require
job applicants to perform thefutilegestureofre -applying for jobs as a predicate to a finding of
discrimination against the employer." 4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection
with the operations 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 free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in and is engaging in unfair labor practices
affecting commerce . The Trial Examiner will recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondent discriminated in the hire and conditions of employ-
ment of J. P. Black, W. A. Elmore, and J. D. Elmore. Since the job for which they would have
been hired, absent such discrimination , has been completed , it will not be recommended that
they be employed. It will be recommended , however, that the Respondent make the above-
named individuals whole for any loss of earnings suffered by them by reason of the Respon-
dent's discrimination against them , by payment to them of a sum of money equal to that which
they would have earned as wages from the date of refusal of employments to the date on which
their employment normally would have been terminated, absent discrimination , less net
earnings during said period. 6
Said sum shall be computed on a quarterly basis , in accordance with Board policy set out
in F. W. Woolworth Company, 90 NLRB 289. It will also be recommended that the Respondent
make available to the Board, upon request , payroll and other records to facilitate the checking
of the amounts of back pay due.
The unfair labor practices found indicated a purpose to limit the lawful concerted activities
of the Respondent 's employees . Suchpurpose is related to other unfair labor practices , and the
danger of their commission is reasonably to be apprehended . The Trial Examiner will there-
fore recommend that the Respondent cease and desist from in any manner infringing upon
rights guaranteed to employees by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, the Trial
Examiner makes the following:
3 Language used by the Board in The Lummus Company ( 101 NLRB 1628) is applicable
here : ".... even if it is assumed that the Carpenters might have referred nonmembers
of its union to the Respondent for employment , the Respondent ' s requirement that job ap-
plicants obtain approval from the Carpenters as a condition of employment is in itself a
discriminatory hiring condition within the meaning of Section 8 (a) (2) of the Act Arthur G.
McKee and Company, 94 NLRB 399, enfd. 196 F. 2d 636 (C A. -5)
4The Lummus Company, supra.
5 November 7, 1051 , should be the first day of the back-pay period , since this was the
earliest day upon which all three applicants would, absent discrimination, have commenced
working.
6Crossett Lumber Company , 8 NLRB 440.
PETERSON CONSTRUCTION COMPANY, INC. 855
CONCLUSIONS OF LAW
1. International Association of Machinists, AFL, and Local 1423, United Brotherhood of
Carpenters and Joiners of America, AFL, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and conditions of employment of J. P. Black, W. A.
Elmore, and J. D. Elmore, thereby encouragingmembershipm the Carpenters, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3)
of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees and applicants for employment that:
WE WILL NOT encourage membership in United Brotherhood of Carpenters and Joiners of
America, AFL, and/or its Local 1423, or in any other labor organization, discourage
membership in any labor organization of employees or applicants for employment, by
conditioning the employment of properly qualified applicants for employment upon mem-
bership in, or referral by, the above-named labor organization, or by discriminating in
any other manner in regard to the hire and tenure of employment of our employees, or
any term or condition of employment, except insofar as such activity maybe affected by an
agreement, authorized in Section 8 (a) (3) of the Act, requiring membership in a labor
organization as a condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees or appli-
cants for employment, in the exercise of their right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be affected by an
agreement, authorized in Section 8 (a) (3) of the Act, requiring membership in a labor
organization as a condition of employment.
WE WILL make whole J. P. Black, W. A. Elmore, and J. D. Elmore for any loss of pay
suffered as a result of our discrimination against them.
All our emplqyees are free to become, remain, or refrain from becoming or remaining
members of any labor organization, except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the Act.
PETERSON CONSTRUCTION COMPANY, INC.,
Employer.
Dated ................ By..............................................................................................
(Representative ) (Title)
This notice must remain posted for sixty (60) days from the date hereof , and must not be
altered , defaced, or covered by any other material.