Walter Toebe and Co.

National Labor Relations Board - Board Decisions

Dec 14, 1966

162 N.L.R.B. 80 (N.L.R.B. 1966)

SO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter Toebe and Company and Allen O'Brien. Case 7-CA-5417.
December 14, 1966
DECISION AND ORDER
On September 1, 1966, Trial Examiner Paul Bisgyer issued his
Decision in the above-entitled case, finding that the Respondent had
not engaged in certain unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision together with a supporting brief.
Pursuant to the provisions of 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 [Chairman McCulloch and Members Jenkins and Zagoria].
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 brief, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendation of the Trial Examiner.
[The Board dismissed the complaint.]
1 These findings and conclusions are based , in part, upon the credibility determinations
of the Trial Examiner, to which the General Counsel excepts. On the basis of our own
careful review of the record , we conclude that the Trial Examiner ' s credibility findings are
not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no
basis for disturbing those findings . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd.
1S8 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Paul Bisgyer on June 29 , 1966, in
Detroit, Michigan , on the complaint of the General Counsel' and the answer of
Walter Toebe and Company, herein called the Respondent. The only question here
presented is whether the Respondent , through its foreman, Paul Taucher , unlawfully
refused to hire the Charging Party, Allen O'Brien, because he was unable to obtain
a work permit or clearance from Reinforced Steel Workers Local Union No. 426,
International Association of Bridge , Structural and Ornamental Iron Workers, AFL-
CIO, herein called the Union. At the close of the hearing, the Charging Party stated
his position on the record . The General Counsel and the Respondent waived oral
argument but thereafter filed briefs.
Upon the entire record, and from my observation of the demeanor of the wit-
nesses, and with due consideration being given to the arguments advanced by the
parties, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Michigan corporation , is engaged in the general construction
business , including the construction and repair of highway bridges. During the
1 The complaint is based on a charge filed by Allen O'Brien on December 22, 1965, a
copy of which was served on the Respondent by registered mail the next day.
162 NLRB No. 18.
WALTER TOEBU AND COMPANY 81
calendar year 1965, the Respondent, in the course and conduct of its business opera-
tions, purchased construction equipment and materials valued in excess of $50,000,
which were shipped to its place of business or jobsites in Michigan from points
outside the State. During the same period, the Respondent performed services
exceeding $50,000 in value for enterprises located outside the State, as well as for
enterprises located within the State which purchased goods valued in excess of
$50,000 from sources outside the State.
The Respondent admits, and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. I further find that the nature and
extent of its operations warrant the Board's assertion of jurisdiction.
H. THE LABOR ORGANIZATION
The Respondent concedes, and I find, that the Union is a labor oragnization
within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
In the summer of 1965 2 the Respondent was engaged in repairing the deck of
a highway bridge near the intersection of U.S. 12 and M 17 in the vicinity of Ann
Arbor, Michigan. This entailed replacing the existing deck with new reinforced
steel and concrete. The repairs were performed in sections with a minimum of
interference with traffic. To perform the reinforced steel work, the Respondent
utilized employees known in the trade as rodbusters or resteel men. The undisputed
evidence shows that on most days during this period, one or two employees, includ-
ing the foreman, were employed in such work, although on other occasions one or
a few more employees were also used.
The complaint alleges that on or about July 13 or 14, the Respondent's foreman,
Paul Taucher, discriminatorily refused to hire O'Brien as a rodbuster because he
was unable to secure a work permit or clearance from the Union. Although under
contract with the Union for its rodbusters,3 it was stipulated at the hearing that the
Respondent and the Union were not parties to an exclusive hiring hall agreement
or arrangement requiring the Respondent to secure workmen solely from the Union.
Since the law is well settled that, absent a valid exclusive hiring hall arrangement,
an employer may not condition employment on union clearance, the issue to be
determined is whether the preponderance of the credible evidence establishes that
O'Brien was actually denied employment for this reason. The only testimony on this
subject is that given by the principals and are in irreconcilable conflict.
O'Brien, a rodbuster for some 20 years and whose qualifications are not ques-
tioned, testified, as follows: On or about July 13, while employed on a nearby job-
site laying asphalt on a parking lot, he observed that reinforcing rods were being
placed on the deck of the bridge jobsite here involved. He thereupon spoke to
Taucher, whose name he did not learn until many months later, and asked whether
he needed help. Taucher, who was working alone on the deck tying rods, replied
by inquiring whether he had "a book." Receiving a negative answer, Taucher told
O'Brien that he needed help, which he had been unable to secure from the Union
for the past 2 weeks; that he should go to the union hall and clear with business
agent , Regis O'Brien, no relative of the Charging Party; and that he should "hurry
back" because he (Taucher) was alone at the site.4 Allen O'Brien then went directly
to the union hall where he was informed that the business agent was not in. After
waiting around a while, Allen O'Brien left the hall but returned later in the after-
noon or the following morning. This time he found Regis O'Brien, advised him that
he had located the bridge job, and requested a work permit. However, Regis O'Brien
refused to give him a permit with the admonition that Allen O'Brien was not going
2 All dates, unless otherwise indicated, refer to 1965.
3 The contract then current between the Respondent and the Union simply provided
that the Union agreed to furnish competent workmen upon notification to its business
manager and that the Respondent agreed not to discriminate against job applicants be-
cause of membership or nonmembership in the Union (article I, section 1).
S The Respondent's business records, however, show that from July 12 through 15. an-
other employee was working with Taucher on this jobsite.
264-047-67-vol. 162 7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work out of this Union so long as he (Regis O'Brien) was business agent.5 The
same or the next day, Allen O'Brien appeared at the jobsite and informed Taucher
that Regis O'Brien would not give him clearance but that he was prepared to go to
work anyway. Taucher, however, declined to hire him, indicating that this was the
wiser course. Allen O'Brien thanked Taucher and departed. He did not file any
unfair labor practice charges against the Respondent until about 5 months after
this experience for the asserted reason that he was unaware of the Board's
existence.
Foreman Taucher, a longtime member of the Union, denied ever having had
the conversations recountered by O'Brien or that O'Brien or any other employee
ever applied for employment at the bridge jobsite. Specifically, he denied offering
O'Brien a job if he obtained a work permit or clearance from the Union or its
business agent. Indeed, he testified, he had no occasion to hire anyone at the job-
site because work was "spotty" and did not require many men and, whatever men
were needed, were transferred from the Respondent's other construction jobs and
were not referred by the Union. He further testified that no union or company
official instructed him to hire only applicants with union clearance.
B. Concluding findings
Viewing the conflicting testimony of O'Brien and Taucher in light of their
demeanor and demonstrated attitudes, I find no justifiable reason for giving greater
credence to O'Brien's account of his asserted conversations with Taucher than to
the latter' s denial that such conversations occurred. Indeed, circumstances seem to
support Taucher's denial and the unlikelihood that he would require O'Brien to
obtain a work permit as a condition of his employment. Thus, according to Taucher's
uncontradicted testimony, his limited needs for rodbusters on the bridge jobsite
were filled by employees transferred from the Respondent's other construction proj-
ects and not by referral by the Union. Significantly, the Respondent and the Union
were concededly not parties to any exclusive hiring hall arrangement which required
the Respondent to obtain its employees from the union hall. On the contrary, their
collective-bargaining agreement, in effect, recognized the Respondent's right to
recruit employees from whatever source it desired with the only qualification that
the Respondent refrain from discriminating against job applicants on the basis of
their membership or nonmembership in the Union. It therefore cannot be assumed
from the fact of Taucher's union membership alone, as it seems to be suggested,
that he would disregard his employer's interests, obligations, and instructions and
refuse employment to O'Brien because of his inability to secure clearance from the
Union. Such an assumption would rest only on surmise and suspicion which, of
course, are inadequate substitutes for evidence. Also reflecting on the reliability of
O'Brien's testimony is his reference to Taucher's urgent request at the time of their
alleged conversation to hurry back when he received clearance because he
(Taucher) was working alone and needed his help. However, the Respondent's busi-
ness records, corroborated by Taucher's testimony, reveal that at the time in ques-
tion and for several days before another employee worked with Taucher placing
steel rods. Finally, the persuasiveness of O'Brien's testimony is not enhanced by
his 5-month delay in filing the unfair labor practice charges herein.
In sum, I conclude that the General Counsel has failed to prove by a pre-
ponderance of the credible evidence that the Respondent, in violation of Section
8(a)(1) and (3) of the Act, denied O'Brien employment because of his failure to
obtain a work permit or clearance from the Union. Accordingly, I recommend
dismissal of the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and upon the entire record in the case,
I recommend that the complaint issued herein against Walter Toebe and Company
be dismissed.
6 Allen O'Brien also testified that, although not a union member, he never had difficulty
securing a work permit from the Union until Regis O'Brien became business agent about
30 months before the hearing. The Union, however, is not charged in this proceeding with
any unfair labor practices nor is any claim made that the Union was legally obligated to
grant Allen O'Brien clearance or to refer him to a job.