Plumbers Local 454

National Labor Relations Board - Board Decisions

Jun 20, 1969

176 N.L.R.B. 896 (N.L.R.B. 1969)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers , Pipe Fitters, and Refrigeration Local
Union 454, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO (Ebasco Services, Inc., et al.) and Ellis
B. Clark . Case 26-CB-448
June 20,1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
provisions of the Act by refusing on various dates in 1968
to refer the charging party to available jobs with various
employers who made use of the respondent ' s referral
system.'
Subsequent to the hearing counsel for- the General
Counsel and for the respondent filed briefs with me.
Upon the record so made , and in view of my
observation of the demeanor of the witnesses , I hereby
make the following:
FINDINGS OF FACT:
1. THE RESPONDENT
On March 28, 1969, Trial Examiner William
Seagle issued his Decision in the above-entitled
proceeding , finding that the Respondent had not
engaged in certain alleged unfair labor practices and
recommending that the complaint herein be
dismissed in its entirety , as set forth in the attached
Trial Examiner ' s Decision . Thereafter , the General
Counsel filed exceptions to the Decision , together
with a supporting brief, and the Charging Party
filed a document which we have construed as
exceptions . The Respondent filed an answering brief.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in
connection with this case to a three-member panel.
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 this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
'In iu=ocument accepted as exceptions , the Charging Party moved that
the record be reopened . We hereby deny that motion as lacking merit.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner : Upon a charge duly
filed by Ellis B . Clark on September 27, 1968; a
complaint issued on November 15, 1968, alleging that the
respondent had violated Sections 8(b)(1)(A) and 8(b)(2) of
the Act; and the answer of the respondent denying the
commission of any unfair labor practices , I heard this case
at Hot Springs, Arkansas, on December 11 and 12, 1968.
The sole issue involved in the present proceeding is
whether the respondent in the operation of its exclusive
hiring hall and referral system, violated the above cited
Plumbers, Pipe Fitters, and Refrigeration Local Union
454, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO (hereinafter referred to as
Local 454), is a labor organization within the meaning of
Section 2(5) of the Act. The jurisdiction of Local 454
extends to nine counties in Arkansas . These nine counties
are Garland, Montgomery , Polk, Yell, Hot Springs, Pike,
Clark, Pope and Sevier.
IL THE EMPLOYERS INVOLVED
Ebasco Services, Inc., is now, and , at all material
times, has been a corporation doing business in the State
of Arkansas with an office and place of business located
in Malvern , Arkansas, where it has been engaged in the
construction of the Lake Catherine Steam Generation
Plant.
Turner-McCoy, Inc., is now, and, at all material times,
has been a corporation doing business in the State of
Arkansas with an office and place of business located in
Little Rock , Arkansas, where it has been engaged in the
installation of plumbing , heating and air-conditioning
units.
Ace Plumbing Company is now, and, at all material
times, has been a corporation doing business in the State
of Arkansas with an office and place of business located
in Hot Springs , Arkansas, where it has been engaged in
the installation of plumbing and air-conditioning units.
Natkins Company is now , and, at all material times,
has been a corporation doing business in the State of
Arkansas with a jobsite at Dardanelle , Arkansas, where it
has been engaged in the installation of plumbing.
During the past 12 months, Ebasco Services, Inc., in
the course and conduct of its business operations,
purchased and received, at its Malvern , Arkansas location,
goods and equipment valued in excess of $50,000 directly
from points located outside of the State of Arkansas.
During the past 12 months, Turner-McCoy, Inc., in the
course and conduct of its business operations , purchased
and received , at its Little Rock, Arkansas location, goods
and equipment valued in excess of $50,000 directly from
points outside of the State of Arkansas.
During the past 12 months , Ace Plumbing Company, in
the course and conduct of its business operations,
purchased and received, at its Hot Springs , Arkansas
location, goods and equipment valued in excess of $50,000
from points located outside of the State of Arkansas.
'There are 27 such employers who are enumerated in paragraph 7 of the
complaint but only 4 of them are directly involved in the present
proceeding . These four employers are Ebaaco Services , Inc., Ace Plumbing
Company, Turner McCoy, Inc., and Natkins Company.
176 NLRB No. 114
PLUMBERS LOCAL 454 897
During the past 12 months, Natkins Company, in the
course and conduct of its business operations, purchased
and received, at its Dardanelle. Arkansas location, goods
and equipment valued in excess of $50,000 directly from
points located outside of the State of Arkansas.
The respondent admits, and I find, that at all material
times Ebasco Services, Inc., Turner-McCoy, Inc., Ace
Plumbing Company, and Natkins Company have been
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relations between Clark and Bottoms
The case for the General Counsel is based on the theory
that David F. Bottoms, the business agent of Local 454
and also its financial secretary and treasurer, refused to
refer Ellis B. Clark, the Charging Party, to various jobs in
1968 because of personal hostility towards the latter,
arising from a series of incidents which had brought them
into conflict. These incidents go as far back as July 1964
when Clark was working on a plumbing job for Ed
Sanders & Son.
Clark is a plumber, pipefitter and refrigeration man,
who was graduated from plumbing school in 1947 and
who was once in business for himself in Kansas City and
Independence, Missouri. He came to Arkansas from
California early in 1964 and bought a farm near
Donaldson, Arkansas. He was licensed as a plumber by
the State of Arkansas and became a member of Local 454
on March 3, 1964.
He was referred by Bottoms to the Ed Sanders & Son
job in August 1964 and worked on the job steadily until
February 1, 1965 when the contract between his employer
and the union was about to expire. Clark, who was
steward on the job, accompanied by Ed Berry, one of the
men, went to see Bottoms in order to ascertain whether
they should come to work the following day. Bottoms told
Clark and Berry that he would pay a visit to the job that
afternoon but he never showed up, and Clark decided to
take the lead in talking to Ed Sanders ' son, Bill, and
obtaining from the son a promise to sign the union's new
contract which called for a 15-cent-an-hour wage increase.
Although Ed Sanders paid the increase, apparently, he
refused to make good on his son' s promise to sign the
contract. He also complained to Bottoms about Clark's
conduct, and the former agreed to the latter's layoff which
proved, however permanent. There was some question
whether Ed Sanders was bound to give any raise because
he had bid the job before there was any question of a
raise, and an International representative of the union was
looking into the matter. When Clark was dismissed,
although the journeymen on the job were being retained,
he was highly incensed and went to see Bottoms to ask the
latter why he had been fired, and to berate him for not
supporting him. Bottoms told Clark that Ed Sanders had
complained about his handling of the situation and wanted
him off the job. According to Clark, Bottoms hung his
head and remarked to him: "Well, you'll never be another
steward on a job for me," and added: "I'll never forget
this." Bottoms admitted that he never again appointed
Clark as steward on any job but denied saying "I'll never
forget this," and I credit his denial. It is somehow not
consistent with the business agent's character that he
should have been so abashed that he hung his head. After
his rather stormy interview with Bottoms, in the course of
which he threatened to whip Bottoms and knock him out
of his own office, Clark did not receive another referral
for about 2 months. Since this could have happened even
if Bottoms had not been angry with Clark, it does not
necessarily follow that it is to be interpreted as a form of
reprisal. In any event, Clark worked with a fair degree of
steadiness during the rest of the year 1965.
During June and July of 1966, Clark was employed at
the Wall Plumbing and Heating Company. This job
involved the remodeling of a building at the country club
golf course in Hot Springs. According to Clark, he was
told by Bottoms that he would be the only man on the
job, and he then demanded a foreman's wages, since he
would have to read the blueprints and do all the layout
work; Bottoms told him, however that Wall would not
pay a foreman's wages, and that he could take the job or
not; he decided to take it because he needed the work.
Clark also testified that while he was on the job he
complained to Bottoms that he was being made to work
with a nonunion man but that the latter told him that he
could do nothing about it, and that he could quit if he did
not like it. Bottoms could not recall any discussion with
Clark about foreman's pay before he went out on the
Wall job but he did recall that after Clark was on the job,
he complained about working all by himself when he
needed help, and that he then told him that he could make
use of the boy on the job who was supposed to do
common labor. The "boy" was a son of Wall who was
working on the job during the summer months, and who
had a summer union working card.
In addition to the work-related incidents, counsel for
the General Counsel relies on Clark's opposition to
Bottoms in the conduct of the internal affairs of the
union. Local 454 has an election for union officers every 2
years in the month of June. Bottoms ran for the offices
which he now holds in 1962, 1964, 1966 and 1968. He had
no opposition in the 1962 and 1964 elections' but he was
opposed in the 1966 and 1968 elections. In 1966, his
opponent was Curtis Buttrum, who is now president of
Local 454 and, according to Clark, he supported the latter
by telling other members that Buttrum was the smarter
and fairer man, that he did not drink, and that he thought
he would make the better business agent. Clark also
testified that he related to other members his experiences
with Bottoms in connection with the Sanders & Son and
Wall Plumbing jobs. Although Bottoms did not campaign
for reelection, he won by a vote of 67 to 13. During the
campaign of 1968, an opposition slate ran against all of
the local's incumbent officers. Ed Halsell, one of the
members of the local, ran against Bottoms, who was again
running for the office of business agent and financial
secretary and treasurer. According to Clark, he told
"several men" that he was backing Halsell because he
thought he would be fairer in operating the referral system
and see to it that "all the men got part of the work rather
than a few men getting most of the work . ."
Nevertheless, Bottoms also triumphed in this election.
Although the vote was closer this time, being 64 to 46, his
victory was all the more impressive because he was the
sole survivor among the incumbents. Bottoms testified,
moreover, that he did not even know that Clark was
campaigning against him in the 1968 election, and I credit
his testimony.
'In any event, Clark was not a member of Local 454 in 1962, and he
was not even eligible to vote in 1964 . since he had not been a member of
the local for a year , which was a prerequisite to his right to vote under the
union constitution.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark made a more direct challenge to Bottoms'
performance of his functions as business agent at the
regular union membership meeting that was held on
August 12, 1968 at the union hall. At this meeting Clark
made a motion that the out-of-work list maintained by
Bottoms for the local be made public by posting on the
union bulletin board. The proposed change in the
procedure concerning the out-of-work list derived from
Clark's distrust of Bottom's behavior in referring
members to the available jobs, and there can be no doubt
that the procedure was very flexible and informal.
Bottoms maintained separate referral lists for the
categories of plumbers, pipefitters and pipefitter-welders,
and he dispatched the members to jobs from these lists in
order but there were many qualifications and exceptions
to following the order of names on the list. Indeed the
exceptions were so numerous that Bottoms testified only
that he followed the order of the lists "the majority of the
time." His evidence, as well as the evidence of other
witnesses, shows that he did not go by the list when an
employer asked for a specific individual by name; when a
welder insisted on a particular helper with whom he was
accustomed to work: when a member who had not been
working for a long time appealed to him for a job,
particularly when he happened to live in the vicinity; when
the requirements of a particular job called for individuals
with special experience; or whenever there seemed to be
some good reason in policy or equity for not going by the
lists. Once a member was referred to a job, his name was
taken off the out-of-work list after a brief interval of a
week or two, and he thus lost his opportunity for more
steady employment. This seems to have been a frequent
source of complaint because often Bottoms in referring a
member to a job did not know how long it would last.
The motion that Clark made at the August 12
membership meeting was seconded by James Knox,
although he was a member of the union's executive board,
and the motion carried, although it was opposed by Curtis
Buttrum, the president of the union, and, of course, by
Bottoms himself. However, at the regular membership
meeting of October 14, 1968, a motion was made by F. B.
Harrison, and seconded by John Williams to rescind the
posting of the out-of-work list and allow Bottoms to
handle it as theretofore. The reasons for the change of
attitude on the part of the membership is not clear from
the record. Presumably, Bottoms went back to keeping
the out-of-work list in his desk, as he had always done.
B. Clark 's Efforts to Secure Referrals
Having reviewed the motivational evidence , so to speak,
it would seem to be next in order to examine the efforts of
Clark to secure referrals to jobs between the end of
March and the end of September when he file his charges
against the respondent .' It is the claim of Clark that
despite persistent efforts on his part during this period he
was unable to secure anything but referrals to "little
piddling jobs' 14 with the result that by the end of
September he was reduced to such penury that he was
unable to support his family, which was faced with
starvation.
'As the charges were filed on September 27, 1968 , the Section 10(b)
period ran from March 27, 1968.
'Clark worked only 16 days for Southwest in the months June , July, and
August , 1968: only 12 days for Vogt & Conant in the months of August
and September 1968; and only 6 days for Martyn Bros. between
September 30 and October 7, 1%8. He had worked 32 hours in the month
Clark sought in his testimony to create the overall
impression that he was constantly in touch with Bottoms
and seeking to secure referrals to jobs, except that
between his layoff from the General Cable plant job early
in February and about the middle of March he "didn't
make too much effort." He explained that the reason for
this was that he was having a new home built and he
himself was busy putting in the plumbing and doing the
painting, although he had hired contractors for most of
the rest of the work. After the middle of March, however,
he "started pressing." This pressing consisted of either
visiting Bottoms in his office to ask for work, or
telephoning to him for the same purpose. Of the two
methods, Clark preferred the latter because, living at
Donaldson, Arkansas, he was 40 to 45 miles away from
the union hall in Hot Springs, and it took him about an
hour to drive there from his home. Asked to state how
often he was in contact with Bottoms, Clark was rather
vague. "There was quite a few times," he testified "I
wouldn't want to say how many." Asked further whether
the contacts occurred at least once a week, he replied that
it was "maybe not that much but quite a bit."
Clark also maintained that he was not getting enough
work, although he was always prepared to travel any
distance, even outside the jurisdiction of Local 454. On
the occasion that this question was first raised with him,
however, Clark testified: "Work was slow, there is no
question about it. So everybody was out of town, but I
couldn't go out of town."
(Emphasis supplied.) A few moments later the
following colloquy occurred:
Q. During the past year, Mr. Clark, have you ever
asked Mr. Bottoms about out of town work?
A. Oh, yes, several times.
Q. Have you ever indicated to Mr. Bottoms that you
weren't interested in out of town work?
A. Never.
A good deal later in his examination, Clark kept repeating
that he had asked for out of town work, "Yes, I've asked
for out of town work," he testified, "I've asked many
times to go out of town," he testified even more strongly.
Clark excepted, however, going to Baton Rouge,
Louisiana, which he described as one of the hell holes of
creation. "That's one of the hot spots of the country," he
testified, "but it's so hot that nobody wants to go down
there, because there is poor housing, high groceries, rain,
wind. So, that is the last job in desperation for any
plumber and pipe fitter." Clark also testified that in May
or June he had asked Bottoms for work in Illinois, which
he had heard about, but that Bottoms had told him that
he could send him there only if he could work with a
of February 1968 at the General Cable plant but had had no work at all in
the months of March . April, and May, 1968 . Clark 's referrals are reflected
in G. C. Exhs. 2 and 3. G. C. Exh . 2 reflects all the referrals of members
of Local 454 who were available for work between the dates of March I
and November 19. 1968 , both in and out of the jurisdiction of the local,
but in many instances no precise dates are given , the inability to do so
being reflected by a question mark . When a member was still on a job at
the time the exhibit was prepared this was indicated by the notation "still
work ." although he might not actually be working . The "still work"
merely indicates that the job is incomplete The amount of time worked is
given in days or weeks but the member did not necessarily work 40 hours
every week. When less than 40 hours were worked , the hours were totaled
together to make a week Thus , although 3 months may have elapsed on a
particular job, only 3 weeks is listed alongside the member 's name. G. C.
Exh. 5 is the work record of Clark from August 1963 to October 19, 1%8.
The periods of employment on this exhibit are shown by weeks and months
except in a few instances where the dates of employment are given.
PLUMBERS LOCAL 454 899
welder which he could not do. After the election in June
1968, Clark went to see Curtis Buttrum , the newly elected
president of the local, and complained to him that
Bottoms would not send him out of town, or in town, for
that matter. Clark ended up by declaring"I was wanting
to travel so bad that I could taste it, but no one would
give me a job," and he explained: "Mr. Bottoms would
always have an answer that they were full up. I wanted to
go to Memphis and he told me they was full."
It is evident that Clark must have been on the
out-of-work lists at the times that he obtained referrals to
the Southwest and Vogt & Conant jobs prior to the time
that he filed charges. But all the out-of-work lists
themselves are not in evidence. The only out-of-work list
that is in evidence is the one that came into existence a
week after the union meeting of August 12, and remained
in use until approximately a week after the union meeting
of October 14.6 Clark himself signed this list, and noted
on it the date that he did so, this date being September 9.6
In the absence of the earlier out-of-work lists, there is no
direct confirmation of Clark's claims that he was
frequently in touch with Bottoms, and Bottoms himself
denied that this was true. Bottoms testified that Clark
never came to his office before the month of May. He
came in the Saturday before the meeting of May 27 at
which nominations were made for union office, which
would be May 25, and he came in then to discuss an
overpayment of dues on his part. On this occasion,
Bottoms asked Clark where he had been all this while,
and told him that while he had no work within the
jurisdiction of the local, there was plenty of work
available out of the State. According to Bottoms, Clark
replied that he was not interested in working then because
he was busy building his home, and that he would like a
week or two of work near his home when he got caught
up with his work. Bottoms testified further that his next
contact with Clark occurred on June 13 when he referred
him to the Southwest job. Of course, Bottoms had seen
Clark at the membership meeting of May 27, but he had
been too busy then to discuss jobs with anyone. He had
also seen Clark the next day in his office when the latter
came in to get permission to post a notice of sale for his
old house on the union bulletin board. This notice had
been typed by Virlene Blocker, Bottom's secretary, who
also testified that she had not seen Clark in the union
office in 1968 more than a few times. Bottoms also
testified that he had not seen Clark between August 27,
when he commenced work on the Vogt & Conant job, and
his layoff from that job on September 9 when he came to
the union office to sign the out-of-work list.
There is no corroboration of Clark's testimony that he
wa° in frequent touch with Bottoms in his effort to obtain
work but there is some corroboration of Bottoms'
testimony that before the month of June Clark was not
even seeking work, and that at no time was Clark
prepared to work out of the State. Lester E. Carr, a
member of the local, who was present in the union office
on the occasion when Clark had come in to have the
'This list is in evidence as G. C. Exh. 5.
'The name of Clark appears twice on this list. It appears first and,
apparently , not in Clark 's handwriting, as the fourth name from the top,
the other three names being J. E. Rogers , H. S. Bryant , and W . J. Martin,
Sr. But on September 9, after he had been laid off from the Vogt &
Conant job, Clark resigned the list, and dated his signature so that he
would be in a position to determine whether others were being sent out
ahead of him . Clark attempted to dismiss the three members whose names
were ahead of his as "elderly men drawing social security."
notice of sale of his old house typed up, and who heard
the conversation between Clark and Bottoms, testified
that when Bottoms asked Clark whether he wanted
out-of-state work, Clark replied that he did not wish to go
out of the State just then, and added that he was not even
interested at that time in going to work because he was
still doing some things around his house. Kenneth Poole,
another member of the local, also testified that when he
encountered Clark at a liquor store one night after a
union meeting, the latter complained to him that he was
being discriminated against, and that he was "just about
to starve to death," and that, when he offered to lend
Clark $40, and told him that he could get him more if he
would work out of town, Clark stated that he was not
interested in going out of town.
C. Clark's Attempts to Discredit Bottoms
The casual encounter between Clark and Poole seems
to have been followed by a more determined effort on the
part of Clark to accuse Bottoms of discrimination against
him in the operation of the union hiring hall, and this
effort seems to have enlisted some degree of attention, if
not support, by some of the members of Local 454 at the
regular membership meeting held on September 23. Clark
told the members that he had not had work for 8 months,
and that he had to have some work, and, according to
Clark, "some of the members got up on the floor and
asked Mr. Bottoms to give me some work that they knew
I hadn't had any;" Walter Martin, Sr.,' then rose and told
the membership that he knew Clark needed work and "if
there was a job available he would give his part up just so
I could go on it;" two or three of the members stood up
and offered to lend him money; and finally Walter
Martin, Jr., suggested that the case of Clark be considered
at an executive board meeting following the membership
meeting. Bottoms' account of what happened at the
membership meeting was as follows:
Some member said that we had a member who was
in bad financial shape and he hadn't worked too regular
and he needed to go to work, and I asked the member
who it was. I said, "I've got several members, I
imagine if they haven't traveled are in bad financial
shape," and this member said Clark, and then Clark
made his pitch. He said he was in bad financial shape,
that he had spent all the money he had, he was having
to sell his boy's saddle horse, and had sold his cattle to
buy groceries, and it looked like to go to work, why, he
was going to have to knock my head off, or something
to that effect. I'm not too positive of the exact words.
That Clark threatened to knock Bottoms' head off is
indeed confirmed by the corroborative testimony of
Walter Martin, Jr., and of Kenneth Poole. The minutes of
the September 23 meeting also show that Clark was
certainly mistaken in testifying that it was Walter Martin,
Jr., who suggested that the executive board meet following
the meeting. It was Curtis Buttrum, the president of the
local, who made the suggestion.
The executive board meeting was duly held after the
membership meeting on September 23. In testifying about
the meeting, Clark dramatized himself as "the center of
attention there," declaring "the meeting was for me."'
'He is, apparently, the father of Walter Martin. Jr., the chairman of the
union ' s executive board.
'Nevertheless, Clark also revealed that another member , John Ledbetter
was there for the same reason that he was; namely , that he had not had
any work for quite sometime.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Clark, he told the executive board: "You
boys here either got to talk to Mr . Bottoms and see that I
get work or I've got to go to the National Labor
Relations Board and file charges ;" he accused Bottoms of
discriminating against him; Bottoms claimed that he had
done the best he could ; the discussion waxed "hot" and in
the midst of it Bottoms walked out of the meeting. The
minutes of the executive board meeting simply reflect,
however , that the board asked Bottoms "to send Clark
out as soon as work was available," and that "Brother
Bottoms assured the Body and the Executive Board that
he would try to get Brother Clark out as soon as
possible ." This is entirely in harmony with the more
detailed testimony of Bottoms, which was confirmed by
the testimony of Curtis Buttrum, the president of the
union . Buttrum , who was a foreman at the Ebasco jobsite,
the Lake Catherine Power House , suggested that Bottoms
contact the supervision there in an effort to get work for
Clark, and Bottoms agreed to do so, explaining to the
board that Clark had just come off a job on which he had
worked 12 straight days with 4 days' overtime pay, and
that he had not realized that he was in such bad straights.
Bottoms also testified that he left the executive board
meeting only after he had asked Buttrum whether he was
needed any longer . Buttrum's testimony establishes also
that Clark turned down the suggestion of a job at Ebasco,
stating that he wanted to work closer to Arkadelphia,
Arkansas , although Arkadelphia was only 28 to 30 miles
from the Ebasco jobsite.
After the executive board meeting of September 23,
Bottoms checked Clark' s work record , and called another
executive board meeting on September 26, at which he
showed the board a work list and invited its members to
compare , Clark' s work record with that of any other
member . The minutes of the meeting indicate that the
executive board concluded : "Since very little work was
available in our area since March and work was available
with travel card the executive board finds no proof for
discrimination charges."
The next day Clark carried out his threat of filing the
charges that initiated the present proceeding . On his way
home from the Regional Offices of the Board, Clark
telephoned to Bottoms and made an appointment to see
him at his home . He assured Bottoms : "Mr. Bottoms, I'd
like to come out and talk to you . There is no hard feelings
and I'm not mad or anything . Don't be afraid of anything
coming up , there will be no trouble or anything."'
Arriving at Bottoms ' home , Clark told him that he had
been to the Board ' s offices at Little Rock and filed
charges, and that "they" had told him "to come down and
talk to you and maybe I could get a settlement out of you
and it would save the local a lot of money and a lot of
trouble ." Bottoms asked Clark: "What are you talking
about?" and Clark replied : "Well they said I might get
four or five thousand dollars or so , but I'll settle off with
you for $2500." Bottoms' response to this was : "Clark, I
couldn ' t give you 25 cents" but he added : "I can give you
a job if you are interested in going to work at Vogt &
Conant (which was working on the Union Carbide plant)
Monday evening ." This job Clark refused unless Bottoms
promised to pull him off the Vogt & Conant job when
another job, the DeGray Dam job, started . Bottoms told
Clark he could not promise him that without talking to
the Superintendent of the DeGray Dam job . Bottoms duly
contacted the superintendent on Sunday and persuaded
him to take on another man. Clark was then referred to
the DeGray Dam job on September 30.
The account of the conversation between Clark and
Bottoms at the latter 's home on September 27 is based on
the latter's testimony, which I accept, but Clark's
testimony is different from Bottoms ' only on a few points.
Clark admitted that he told Bottoms that before coming
out to his house he had been told in the Board 's offices
that "these things can get pretty nasty and long drawn
out," and that if he could go to Bottoms and "try to work
out some kind of a settlement with him so we won't have
to go through with this," they would all be better off.
Clark also testified that he even told Bottoms in making
his offer to accept $2500 in settlement : "Well, you've
worked for five years at about a $10,000 salary a year. I
haven 't worked at all. I've got to have help." (Emphasis
supplied.)
After leaving Bottoms ' house, Clark went over to the
house of Walter Martin, Jr. and told the latter about his
effort to get Bottoms to settle for $2500, and also
attempted to persuade him, but without success, to
support the settlement in exchange for his dropping his
charges . He also wrote a letter to Peter T . Schoemann,
the president of the International , about his case , and, as
a result , the executive board of Local 454 held another
meeting on November 17 to discuss it. Clark and Bottoms
were both present at this meeting . Walter Martin, Jr.
asked Clark "what would it take for him to drop all
charges involved against the local and Mr. Bottoms," and
Clark , pointing to Bottoms , replied that he would drop all
charges if the union would get rid of Bottoms . That he
made this proposal is not denied by Clark. It is indeed
confirmed by the testimony of two of the members of the
executive board , Walter Martin , Jr., its chairman, and
Don E. Skillern, a member of the local.
D. Concluding Findings
Where there are issues of credibility between Clark and
the respondent ' s witnesses , I resolve them in favor of the
latter . I am convinced that Clark , who appears to have a
persecution complex , and to be given to the making of
threats of bodily violence and to wild exaggerations, often
distorted the truth , and I reject his testimony where it
conflicts with that of Bottoms, and the witnesses who
corroborated the latter. There is no corroboration, on the
other hand , for the disputed elements in Clark's
testimony.
I am also convinced that Counsel for the General
Counsel has failed to establish any connection between the
incidents involving Clark and Bottoms and the latter's
operation of the referral system . The extent of the alleged
clashes between them is , moreover, grossly exaggerated,
and, whatever animosity really existed , was on the part of
Clark rather than on the part of Bottoms . Clark appears
to be a type of individual who bears grudges for
extraordinarily long periods of time.
This is illustrated by the Ed Sauders & Son incident
that occurred as far back as February 1965. Clark
attempted to picture himself as terribly wronged in this
instance - as a stalwart union man seeking to uphold the
obligations of union membership - but there is something
of a case to be made for Bottoms also , and it is possible
to perceive that Bottoms may well have thought that
'Clark made no mention of the assurance in testifying about the
telephone call to Bottoms but the latter did mention it in his testimony,
and considering Clark's previous threats, it is readily understandable that
Bottoms should have needed such an assurance and that Clark should have
given it.
PLUMBERS LOCAL 454 901
Clark was acting officiously in the matter . There is no
occasion to decide the ultimate merits of the controversy
but, even if Clark were wholly justified , it is apparent that
he overreacted to the provocation . In any event, the
incident occurred about 3 1 /2 years ago , and it is hard to
believe that it was a factor in Bottoms ' conduct in 1968.
Clark did fairly well employment-wise in 1965, and by his
own admission 1967 was a good year for him. While he
did not have much work in the early months of 1966 - at
least not in the jurisdictional area of Local 454 - he did
better in the subsequent months , and the year as a whole
was at least 70 percent as good as the year 1967 . If 1967
was a good year for Clark , Bottoms could not have been
engaged in manifesting ill will towards Clark then. If he
dig not do so in 1967 , why in 1968? Since 1967 is nearer
to 1965 than 1968, the grudge , if Bottoms still bore it,
should have been more strongly operative in the earlier
year.
The Wall Plumbing job incident, which occurred in
1966, was also followed by Clark's "good year" in 1967,
and is subject to the same considerations . Certainly it was
far more trivial than the Ed Sauders and Son incident.
Moreover , the evidence indicates that Clark was wrong
both in his contention that he was entitled to a foreman's
pay and his contention that he should not be required to
work with a nonunion man. Walter Martin , Jr., who is
chairman of the union 's executive board , testified that he
worked without foreman ' s pay when he was the only man
on a job, and the respondent showed that Wall's son, with
whom Clark was required to work , had a summer
working card issued to him by Laborers Local 490 of Hot
Springs . Arkansas.
It seems to me also that one of Clark ' s most palpable
exaggerations was the role in the union elections of 1966
and 1968 in which he sought to cast himself . Counsel for
the General Counsel produced not a single one of the
union members to whom Clark claimed to have talked
during the election campaigns , and, in the absence of such
corroborating evidence , it would be hazardous to believe
that Clark was very outspoken. Even if Clark did give
expression to his wrath against Bottoms during the
election campaigns , moreover , it is apparent that it
produced no effect , 16 since Bottoms won handily both in
1966 and 1968. Having been the victor in both elections,
Bottoms had no reason to be vindictive , or even resentful.
Again it must be asked why, if Bottoms did not take it
out on Clark in 1967, he should have done so in 1968.
It is true that Clark took the lead in securing the
posting of the out-of-work list , and I have already
intimated that this was a more direct challenge to
Bottoms ' authority than any opposition in an election
campaign could have been . It is also true that this act of
Clark was also a more recent challenge . Nevertheless, I
fail to find substantial evidence that it was responsible for
retaliation by Bottoms in the manipulation of the referral
system in the subsequent months of 1968. The evidence
suggests rather that Bottoms met the challenge by
securing a return to the former practice. If Bottoms was
bent on revenge , it would be logical to expect that he
would also seek to avenge himself on James Knox, who
had seconded Clark ' s motion . The referral record shows,
however, that Knox was referred to a job at Vogt &
Conant on August 30, 1968, and to a job at the Ebasco
Power House on September 24, where at the time of the
"I should note in passing that Clark 's argument in favor of Bottoms'
opponent that he was more abstemious than Bottoms came with ill-grace
from one who was encountered in a liquor store by one of his brethern.
hearing he was still working after a period of employment
of 9 weeks , and that Clark himself was referred to a job
at Vogt & Conant on August 27, 1968, although this job
lasted only 12 days . During this "reform" period, so to
speak , it was made , moreover , more difficult than ever for
Bottoms to discriminate in operating the referral system,
for once the referral list was posted , he was operating in a
gold-fish bowl . His acts were then subject to greater
scrutiny by the membership , and he had less freedom to
deviate from the order of the out-of-work list. It is
somewhat ironic to reflect that this situation , which made
Clark' s case so much harder to prove, was brought about
by an action initiated by Clark himself.
A leading motif in the present case is Clark 's supposed
penury, which apparently , he advertised to everyone. But
there is reason to believe that it was exaggerated by
Clark, or that if it was real, that it was brought about by
Clark's own actions . He could not have been destitute in
the early months of 1968, since he himself testified that he
was not really ready to go to work until about the middle
of March . This means that he had really temporarily
withdrawn from the labor market . He also could not have
been destitute if he had the funds in the amount of $8,000
to pay the contractors who were building a new home for
him, for he offered checks payable to them in that amount
at the hearing ." After the new house had been build
Clark, of course, had two houses , the new and the old,
and the old was still inhabitable , since he was engaged in
trying to sell it . The ownership of two houses cannot
readily be equated with dire poverty. Clark may have
temporarily been strapped for ready cash but it is
apparent that he was house-rich , and that he could have
raised money on the houses , unless indeed both of them
were already mortgaged up to the hilt, which is
improbable.
In any event , it was not poverty but the lure of easy
money that drove Clark on to see what he could get out
of Bottoms. He seems to have determined to make his
poor year , so far as earnings were concerned , pay off in
some ready cash . Having filed his charges , he did not
delay so much as a day in contacting Bottoms . He did so,
despite the fact that the Regional Office could hardly have
had time to investigate his charges, and it is hardly
credible that anyone in that office would have suggested to
Clark, as he attempted to make it appear , that he go to
see Bottoms immediately with a view to getting out of
him a cash settlement of 4 or 5 thousand dollars . What he
might have been told was that the Board proceeding might
be long drawn out and that he might be better off if he
could work out some modus vivendi with Bottoms under
which he could get some steady and remunerative work.
But Clark was not interested in work and at once
persuaded himself that he now had Board approval for
getting some ready cash out of Bottoms. It is
characteristic of Clark that he should have attempted to
justify his demands by remarking to Bottoms that while
he had been working at $10,000 a year for 5 years, he had
not been working at all. This was, of course, just
nonsense.
"Counsel for the Respondent would seem to be in error in contending
that Clark built his new home "only with the help of one carpenter, a
friend who lived nearby ." He bases this contention on the testimony of Len
J. Anderson, formerly president of Local 454 , whose testimony he
misconstrues . Anderson visited Clark 's old home because he thought that
his father-in-law, who was retiring , might be interested n buying it, and he
testified that in talking to Clark , the latter told ban that he had built the
house . Clark did not mean that he personally built the house, he meant
that he had it built.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, if it is really true that by the middle
of the year Clark was nearly destitute, the indications are
that he brought it on himself, that the wound was
self-inflicted. The year 1968 was, to be sure, a very poor
one for plumbers and there was very little work available
within the jurisdiction of Local 454. Even Clark admitted
this much. But there was plenty of work available outside
of the jurisdiction of Local 454, and its availability was
repeatedly announced at union meetings and by postings
on the union bulletin board.
The record shows that a majority of the members of
Local 454 traveled during the year 1968 in order to obtain
employment. They ranged as far as Las Vegas. Nevada,
Everette, Washington, and the Bahamas. The favorite
places were, however, Hattiesburg, Mississippi, Memphis,
Tennessee, Baton Rouge, Louisiana,' 2 and Rock Island,
Illinois . Despite the availability of work elsewhere,
however, Clark remained stubbornly at home. Up to May
20, 1968, when he moved into his new house, he was not
interested in work at all, whether in or out of the
jurisdiction of Local 454, but even after this date he still
had his old house to dispose of, and was disinclined to go
any considerable distance from the local scene. There is
little doubt, moreover, that this continued to be his
attitude during the balance of 1968. This is confirmed by
the fact that he,turned down jobs in the latter part of
1968, even after he had filed charges against the local, and
despite the fact that some of these jobs were fairly close to
his home. While he did not give his disinclination to travel
as a reason for declining the jobs, and may have been
motivated in part by a desire to make sure that he secured
long-term employment, I believe it was a factor in his
decisions. One of the jobs offered to Clark was the Vogt
& Conant job for Union Carbide, and as it turned out,
ironically, the two plumbers who were sent out to this job,
namely W. C. Brown and L. W. Ledbetter, were still on
this job at the time of the hearing, both having worked
there for 8 weeks.
That the unremunerative referrals which Clark received
in 1968 resulted not from any animus against him on the
part of Bottoms but from the general lack of work for
plumbers and pipe fitters within the jurisdiction of Local
454 is also indicated by the fact that other plumbers or
pipe fitters had a year as lean as his in 1968. These were
E. R. Baker, W. C. Brown, H. G. Bryant, E. Halsell, W.
J. Martin, Sr., and A. R. Moore, who are plumbers, and
C. L. Terrell, who is a pipefitter. There were many other
members of Local 454 who would have had equally lean
years if they had stayed home, and not sought work by
traveling considerable distances from their homes. Yet
these members of Local 454 filed no charges of
discrimination against Bottoms. While it is possible, of
course, that they were more long-suffering than Clark,
there would seem to be no foundation for this surmise.
Counsel for the General Cousel relies specifically on
the series of alleged refusals to' refer Clark to available
jobs that are alleged in Paragraph 8 in the complaint. The
approximate dates on which these refusals to refer are
alleged to have occurred are April 15 and 26, May 20,
June 24, July 1, August 6 and 14, and September 12 and
24, but, although these dates number nine, only four
"in view of Clark 's intense dislike of Baton Rouge, Louisiana, counsel
for the respondent makes much of the fact that at least 16 members of
Local 454 chose to endure "the rain , cold and heat described by Clark in
order to earn a living " Nine of the sixteen lived in Louisiana , however,
and two of these nine actually lived in Baton Rouge , Louisiana' The fact is
also that Clark did not complain of any cold in Baton Rouge , Louisiana.
different employers are involved; namely, Ebasco Services,
Turner-McCoy, Ace Plumbing, and Natkins Company. It
would seem unnecessary, if not pointless, to discuss,
however, each of the alleged refusals in detail. As Clark
was not really in the labor market until May 25 at the
earliest, there could not have been any refusals to refer
him prior to that date Indeed, Clark's availability for
employment on any specific date thereafter is firmly
established only as of September 9, and as of the dates on
which he was actually referred to jobs. On the dates of
some of the alleged refusals to refer him, Clark was,
moreover, actually working, so far as Bottoms knew, and
no refusals could have occurred, therefore, during these
periods. On other dates Clark was actually holding out for
better referrals and declining these offered to him.
Counsel for the General Counsel complains particularly of
the refusals to refer Clark to the Ebasco Services jobs that
involved heavy rigging at great heights, and, despite
Clark's claims that he was qualified to perform such
work, there is impressive evidence to the contrary.
Counsel for the General Counsel also stresses as
discriminatory Bottom's failure to refer Clark to Natkins
& Company as a welder's helper but it is clear that Clark
was not good at that kind of work, and that in any event
it was customary in the industry for pipe welders to insist
on having their own helpers."
It may be, to be sure, that Bottoms in operating the
referral system, which was not rigid, on occasion made
referrals that constituted favored treatment of particular
members of Local 454. But this is not the issue in the
case. The issue is whether the referrals were connected
with Bottoms' supposed animus against Clark arising
from the latter's alleged union activities and were
motivated by Bottoms desire to punish Clark because of
them. I find no satisfactory evidence that they were so
motivated. The respondent can only be found guilty of
violating Section 8(b)(l)(A) and (2) of the Act for the
reason or reasons alleged in the complaint, which does not
raise any issue of general favoritism. Such a wide issue
was neither framed in the pleadings nor fully litigated.
CONCLUSIONS OF LAW
1. Plumbers, Pipe Fitters, and Refrigeration Local
Union 454 , United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada , AFL-CIO, the respondent
in the present proceeding, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Ebasco Services , Inc., Turner-McCoy, Inc., Ace
Plumbing Company , and Natkins Company are employers
engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
3 By refusing to refer Ellis B. Clark to the jobs
specified in paragraph 8 of the complaint , and on the
approximate dates specified therein , the respondent has
not committed any unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions of law, I
recommend that the Board enter an order dismissing the
complaint.
"This custom is reflected in Lipsey. Inc, 172 NLRB No. 171