Whittenberg Construction Co.

WHITTENBERG CONSTRUCTION COMPANY 29 WHITTENBERG CONSTRUCTION COMPANY and INTERNATIONAL ASSOCIA- TION OF MACJIIINISTS. Case No. 9-CA-222. September 10, 1951 Decision and Order On April 30, 1951, Trial Examiner Peter F. Ward issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent engaged in and was engaging in certain unfair labor prac- tices 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 Respondent filed exceptions to the Intermediate Report, and a supporting brief. 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modification. Unlike the Trial Examiner we are unable to impute to the Re- spondent knowledge of the fact that job applicant Vines was a mem- ber of the IAM rather than the Carpenters solely from the fact that such information was communicated by Vines to the guard, Rogers 4 Nor does the record contain any other evidence which would establish such knowledge by the Respondent. Moreover, while we agree with the Trial Examiner's finding that the Respondent had adopted a dis- criminatory hiring policy, Vines' testimony as to what Rogers told him Downs, the millwright foreman, had said,. is clearly hearsay and does not establish that Downs actually made such statements to Rogers. In these circumstances and in the absence of any other evi- dence, we conclude that the complaint as to Vines is not supported by a preponderance of the relevant and probative evidence.' I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston , Reynolds, and Styles]. I We find no merit to the Respondent's contention that the Trial Examiner was biased and prejudiced because he credited the testimony of the General Counsel' s witnesses and failed to credit those of the Respondent . See N. L. R. B. v. Pittsburgh Steamship Com- pany, 340 U. S 498 8 The Intermediate Report contains certain erroneous statements of fact and inadver- tences , none of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein. Accordingly , we make the following corrections : ( 1) In the conversation of Aukust 24 between Griffin and Vaughan the Trial Examiner states ". . . Bryant re- plied. . . This should be ". . Griffin replied . . ." and (2 ) Anthony Daniel Kelly's age is 49 instead of 29 as found by the Trial Examiner. 4 See The Kellogg Company, 94 NLRB 526. V Member Reynolds dissents from this finding for the reasons stated in his separate opinion. 96 NLRB No. 9. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, although we adopt the Trial Examiner's findings and conclusions as to the other 15 alleged discriminatees, we shall dismiss the complaint as to Vines. Order Upon the entire record in this case and pursuant to Section 10 (c) of the Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Whittenberg Construction Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, or in any other labor organization of its employees, or encouraging membership in United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization of its employees, by discriminating in regard to their hire, tenure of employ- ment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the International Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collec- tive bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Cecil Weitlauf, W. L. Choate, Anthony Daniel Kelly, James Edwin Smith, William Early Sloan, Glenn W. Mc- Kinney, Raymond K. King, James Bradley Smith, Z. C. Herrold, Sam J. Sloan, Reginald Purcell, A. L. Ham, John W. Dowell, Earl D. Terry, and Fred O. Rupche in the manner set forth in the Intermedi- ate Report attached hereto in the section entitled "The Remedy." (b) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (c) Post at its principal place of business in Louisville, Kentucky, and at the Kentucky Ordnance Works, located in the vicinity of Padu- cah, Kentucky, and deliver to the business agent of the United Brother- hood of Carpenters and Joiners of America, AFL, Paducah, and to the business agent of the IAM, Paducah, Kentucky, copies of the c WHITTENBERG CONSTRUCTION COMPANY 31 notice attached hereto marked "Appendix." e Copies of such notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent's representatives, be posted by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted, and upon the bulletin boards at the Kentucky Ordnance Works, Padu- cah, Kentucky. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other. material. (d) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges a discriminatory refusal to hire William R. Vines. MEMBER REYNOLDS, dissenting and concurring : I am unable to agree with the majority that the record fails to establish that Vines was discriminatorily denied employment. The record shows that when Vines appeared at the Respondent's premises, he was stopped by Chief Guard Rogers, who was advised of Vines' IAM membership and desire for employment. Whereupon Rogers called Foreman Downs and then reported to Vines, according to the latter's testimony, that Downs stated that Vines would have to join the Carpenters before securing employment. Contrary to the majority, Vines' testimony as to the statements attributed to Downs cannot be lightly brushed aside as hearsay, for his testimony is strongly corrobo- rated by the majority's finding, with which I concur, that the Respond- ent in fact had adopted a discriminatory policy of hiring only members of the Carpenters and pursuant thereto had discriminatorily refused to hire 15 named members of the IAM. In any event, the record as a whole convinces me that Chief Guard Rogers, in intercepting Vines as a job applicant belonging to the IAM and representing to him that membership in the Carpenters was a condition of employment, was acting within the scope of his employment and in furtherance of the Respondent's otherwise established discriminatory hiring policy. I would therefore impute Rogers' action and knowledge to the Re- spondent.' Under all the circumstances, I would find, like the Trial Examiner, that Vines was also a victim of the Respondent's discriminatory hiring policy. In all other respects, I concur in the majority opinion. e In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." 7 See my dissenting opinion in M. W. Kellogg Company, 94 NLRB 526. '32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees and applicants for employment, International Association of Machinists, and United Brotherhood of Carpenters and Joiners of America, AFL, of Paducah, Kentucky, and vicinity that : WE WILL NOT discourage membership in INTERNATIONAL ASSO- CIATION OF MACHINISTS, or in any other labor organization, or encourage membership in UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS, AFL, or in any other labor organization by refusing to employ properly qualified applicants, or in any other manner discriminating in regard to their hire or tenure of em- ployment, or any term or condition of their employment, except insofar as such activity may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in collective bar- gaining 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 requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL snake whole Cecil Weitlauf, W. L. Choate, Anthony Daniel Kelly, James Edwin Smith, William Earl Sloan, Ben W. McKinney, Raymond K. King, James Bradley Smith, Z. C. Her- rold, Sam J. Sloan, Reginald Purcell, A. L. Ham, John W. Dowell, Earl D. Terry, and Fred O. Rupche for any loss of pay suffered as a result of our discrimination against them. WHITTENBERG CONSTRUCTION COMPANY, Employer. By ----------------------------------------- (Representative ) (Title) Dated ----------------=--- WHITTENBERG CONSTRUCTION COMPANY 33 This notice must remain posted for 60 consecutive days from the 4 -date hereof and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by International Association of Machinists, herein called the IAM, the General Counsel'of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional. Director for the Ninth Region (Cincinnati, Ohio), issued a complaint dated November 16, 1950, against Whittenherg Construction Company, Louisville, Kentucky, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, the charges, and notice of hearing were duly served upon the Respondent and the IAM. With respect to unfair labor practices, the complaint alleges, in substance, that the Respondent: (1) By its officers and agents, refused employment to those persons listed in Appendix A, attached hereto, on or about the dates listed opposite their names, and on various dates thereafter has refused, and is refusing, to employ such persons for the purpose of discouraging membership in, sympathy for, and activity for the IAM, and for the purpose of encouraging membership in United Brotherhood of Carpenters and Joiners of America, AFL, hereinafter called the Carpenters; and (2) by said acts has interfered with, restrained, and coeiced its'eniployees in the exercise of the rights guaranteed in Section 7 of the Act. On November 30, 1950, the Respondent filed its answer wherein it admitted the interstate character of the Respondent's business operation but denied the commission of the alleged unfair labor practices. Pursuant to due notice a hearing was held in Paducah, Kentucky, on Jan- uary 29 and 30, 1951, before the undersigned, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the TAM was represented by an IAM repre- sentative. All parties participated in the hearing and were afforded an opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues The parties were afforded an oppor- tunity to argue orally before the undersigned, which was waived. The parties were advised that they might file briefs and/or proposed findings of fact and conclusions of law with the undersigned. A brief was filed by the General Counsel The General Counsel's motion to conform the pleadings to the proof, in mirror variations, such as the spelling of names, and so forth, was granted without objection. During the hearing, the undersigned reserved rulings on motions by counsel for the Respondent to strike the testimony of General Counsel's witnesses. Ralph Pryor, Charles Henry Russell, Otto Bechtold, and Edgar Childers ; and a further motion to strike General Counsel's Exhibits Nos. 2 and 3 from the record. The undersigned now rules that said motions be, and they hereby are, denied. ' 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Whittenberg Construction Company is a Kentucky corporation with its prin- cipal offices and place of business in Louisville, Kentucky, and is engaged in the general construction business. All of the stock of the Whittenberg Construction Company is owned by H. G. Whittenberg and W. M. Irion, copartners doing business as Whittenberg and Irion. The same partnership owns another cor- poration, Whittenberg Construction Corporation, a general construction firm with offices and principal place of business in Louisville, Kentucky. During the course and conduct of its business, the Respondent, at all times material herein, has caused a substantial quantity of the materials, supplies, and equip- ment used by it to be purchased and transported in interstate commerce into the State of Kentucky from and through States of the United States other than the State of Kentucky. Also at all times material herein, the Respondent per- forms and has performed a substantial amount of services for companies engaged in interstate commerce. Its annual purchases of supplies and equipment for the year are approximately $168,000, of which approximately $125,000 worth come from sources outside the State of Kentucky. During the same annual period, the Respondent's gross income is approximately $599,000 all of which is derived from work performed within the State of Kentucky ; but approximately 45 per- cent of such sum represents work performed for firms engaged in interstate commerce ; and during such, times, the Respondent has been a principal con- tractor for the Government of the United States in performing services in con- nection with maintenance of the Kentucky Ordnance Works, a munitions plant operated by the General Services Administration, an agency of the Government of the United States. A contract for such service provided for payment to the Respondent of approximately $214,000 for services and materials ; and 7 per- cent of such sum represents the value of materials purchased outside the State of Kentucky' The undersigned finds that the Respondent is engaged in inter- state commerce as defined by the Act and that it will effectuate the policies thereof by the Board's assumption and exercise of jurisdiction herein. It. THE LABOR ORGANIZATION INVOLVED The International Association of Machinists is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discriminatory refusal to employ 1. Sequence of events leading to such refusals During World War II, the United States Government caused an ordnance works to be constructed near Paducah, Kentucky, known as the Kentucky Ord- nance Works, hereinafter called KOW. Such construction took place in or about 1 The findings in this section are based upon stipulation of the parties and the allegations of the complaint as admitted by the answer . In this connection see Harvey Stoller d/b/a Richland Laundry Dry Cleaners, 93 NLRB 680. . WHITTENBERG CONSTRUCTION COMPANY 35 1942 or 1943, and was performed by building and construction craftsmen affiliated with the American Federation of Labor, hereinafter called AFL, under "strictly a closed-shop. . . ." All machine work done in such original construction was performed by millwright members of United Brotherhood of Carpenters and Joiners of America, AFL, hereinafter referred to as Carpenters-Millwrights, or either, under the supervision of George Francis Downs as millwright foreman' On June 28, 1949, the Respondent entered into a contract with the Public Buildings Administration, Federal Works Agency, under the terms of which the Respondent was to put KOW in a standby or layaway condition. Charles Russell Bryant s was the Respondent's superintendent in charge of construction at the KOW project. Bryant arrived at Paducah on or about July 12, 1949, or some 2 weeks after the execution of the contract. Upon his arrival Bryant found the Electricians and Pipefitters, AFL, of the area, were on an area strike. Since the services of both the electricians and pipefitters were necessary in the KOW project, work could not be started on the project until the strike was settled.4 Prior to his hiring of any employees, Bryant met with the Paducah Building and Construction Trades Council, A. F. of L., herein called the Council' At this meeting between Bryant and the Council, the latter was represented by W. B. Sanders, secretary of the Council and business manager for the Iron Workers Union, W. G. McCloud and Homer Allen for the Electrical Workers, a Mr. Hall for the Steamfitters and Plumbers Organization, and Jodie Vaughn for the Car- penters.' At this first meeting between the business agents of the Council and Bryant held in the Building Trades Hall, wages as they pertain to each craft, and other conditions of employment, and the number of men to be employed on the project were discussed. While the record discloses that Bryant could not, or would not, enter into a written agreement with the Council it was tacitly agreed and under- stood that Bryant would hire only A. F. of L. craftsmen on the KOW job. Under date of July 28, 1949, Charles R. Raper, facilities superintendent for the General Services Administration, a governmental agency, issued the following : OFFICE MEMORANDUM U. S. GOVERNMENT To : Mr. W. M. Rogers, Chief Protection 7-28-49 From : Charles R. Raper Guard on duty Post #1 shall be instructed that no person or persons seeking employment is to be admitted without Union referral card. Effective with issuance of this memorandum Mr. Charles E. Koclanes and Mr. M. C. McDonald will sign passes. Signed Charles R. Raper, CHARLES R. RAPER, Facility Superintendent. 2 As is stated in more detail below, Downs was employed as such a millwright foreman by the Respondent herein in connection with the execution of the contract and the work out of which the labor dispute involved in the instant case arose. 8 The parties stipulated that both Bryant and Downs were supervisory employees as defined by the Act. 4 The parties stipulated that this strike was settled about October 1, 1949. 5 Bryant in his testimony denied ever meeting with the Council but did admit meeting with the business agents of the Council "unofficially." Bryant's credibility as a witness will be discussed in more detail below. 9 Vaughn professed to be unable to recall when such meeting with the Council and Bryant tool; place. Vaughn's further testimony, referred to hereinafter , will be discussed In detail below. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raper testified that the order was issued as a part of his over-all security plant policy ; and that the order, which was shown to Bryant before its issuance, would not have been issued in the form which it was had he understood that the Re- spondent Company hired nonunion as well as union employees! Irwin M. Griffin, an IAM member for 24 years, held the position of special organizer for the IAM at Paducah and vicinity during 1949. Prior, to August 23, 1949, Griffin found a note on his desk from the Teamsters to the effect that Bryant had called in for an auto mechanic ; that the Teamsters had informed Bryant that the Machinists had jurisdiction over auto mechanics and requested that Griffin call Bryant. Griffin called Bryant pursuant to advice from the Teamsters and was informed that Bryant wanted an auto mechanic familiar with Chevrolet and Ford trucks ; Griffin told Bryant he had one who would fill the job and sent R. L. Sheldon out to the KOW project, where he was subse- quently employed. On or about August 23, 1949, Griffin contacted Bryant on the grounds of the ROW and also in Bryant's office. Griffin informed the latter that he represented the Machinists and understood that there would be quite a bit of mill work to be performed on the KOW project, stated that he would like to place his men on such job; that the IAM had approximately 500 well-qualified machinists who were furloughed and he wanted them assigned to the machinist work on the job. Bryant asked if the IAM was associated with the Council and was informed that it was not. Griffin testified : Q. Was anything else said? A He first said he didn't particularly care what craft done the work, but if the machinists worked on the job, they would have to come through the Carpenters Organization and be referred to him by them. Q. Do you recall anything else of that conversation? A I told him I was afraid that if they had to come through the Car- penters Organization there wouldn't be very many of our fellows get work on the job. He said he was sorry but that was the deal. I told him we didn't consider that Carpenters jurisdiction. But he said the fact that he had an agreement with the Building Trades Council to furnish him his men, and he made the statement clear, and very clear, that the reason why he made it a practice, when he went into an area as a stranger, in order to get sufficient capable help, he found that by contacting the Build- ing Trades Department would help him out in getting men ; and that was the reason he did it. * Q Did he make any suggestion to you as to what you could do? A. He did. Q. What did he tell you to do? A. He said he would like for me and the Carpenters' business agent to get together and work out some agreement whereby it would relieve him from any trouble out there. He was afraid to put machinists in there, the Carpenters would picket his job, and I said I didn't think it would hurt him if the Carpenters did picket him because I thought all the rest of the crafts would cross the picket line-wouldn't honor it. He said if ' It should be n^plted that Raper's memorandum was promulgated prior to the time when the JAM machinists claimed the millwright work. WHITTENBFIRG CONSTRUCTION COMPANY 37 they put a picket line on here the Carpenters would picket every other job in the State of Kentucky 8 and tie him up on every other job he had in the state. Q. Do you recall anything else? A. He suggested that Mr Vaughn and I get together and work out some- thing whereby we could relieve him of any responsibility of any trouble. On the following day, August 24, Griffin contacted Vaughn and informed him that he understood from Bryant that Vaughn had to refer the Millwrights that were employed on the KOW job ; Vaughn stated "That was right" ; to which Bryant replied, "Mr Vaughn, do you know that is our work. That is strictly machinist work," and that the TAM had 500 workers out of work at that time. Griffin then proposed to Vaughn that he give Vaughn the names of a number of machinists with the understanding that for each carpenter-millwright Vaughn referred to the job he would refer one machinist. Vaughn replied, in substance, that he had all the men lined up at that time who could be put on the KOW job. Griffin then proposed to Vaughn and subsequently to Sanders, the Council's secretary, that the TAM join the Council. Vaughn replied that he was not an officer of the Council and referred Griffin to Sanders. Sanders stated that inasmuch as the TAM- was not affiliated with the A. F. of L, it would be impossible for the TAM to join the Council. On or about August 29 or 30, 1949, and before the then-existing strike of the Electricians and Pipefitters had been settled, Griffin went to Bryant's residence and reported to the latter that he had contacted Vaughn who refused to agree to send any TAM members out to the job. Griffin then asked if he could send TAM members out to KOW to contact Bryant ; He [Bryant] said he couldn't do it. He was sorry, just as sorry as he could be, but they would have to come through the Carpenters Local, because he had made an agreement with those fellows and couldn't get out of it. I asked him if he knew that it was against the Unfair Labor Practices to have preferential hiring, and he didn't say he did or, he didn't. I advised him that if at least both of our men were not placed on the job, we would prefer Unfair Labor charges, and he said he couldn't help it. On or about September 15, at Griffin's suggestion Claimant McKinney and Dallas Bradford, also a machinist, called on Vaughn and requested that lie send them out to the KOW job. Vaughn said he could not do so and when Brad- ford asked if he and McKinney could join the Carpenters and be sent out, Vaughn replied, "No, they could not hold two cards", and That even if he would let us join, he would have to take care of his men first. Vaughn then stated that he had 18 or 20 men available for the job. Also on or about September 15, Claimant William E. Sloan called on Vaughn and asked if he could get a Carpenters' card, stating that he was a machinist and would like to get a job and go to work. Vaughn replied, ". . . there wasn't any machinists going out there. There was (sic) going to be millwrights." Claimant Reginald Purcell called on Vaughn with a request that he be assigned to the KOW job and was informed by Vaughn that the latter had.enough unem- ployed men to take care of the job, and refused to take Purcell's application for membership. 8 The record discloses that the, coowners of the Respondent Company,- In addition to owning such Company, also own and operate another corporation engaged in construction work in Kentucky The record further shows that the Respondent, in the Louisville, Ken- tucky, area , operates under a written contract with the AFL Building and Trades Council of Louisville. 974176-52-vol. 96-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime during the latter part of September or the early portion of October 1949, on an occasion when Bryant met with the business agents of the Council at the KOW project, he requested Vaughn, as business agent for the Carpenters and Millwrights, to get the jurisdictional dispute between the Carpenters-Mill- wrights and the Machinists thrashed out. The record discloses however, that Vaughn made no effort to adjust the jurisdictional dispute with the Machinists ; on the contrary he insisted that all millwright jobs should be filled by Carpenters- Millwrights. On or about October 12 Griffin went to the KOW plant and got in touch with Bryant. He informed Bryant that his information was that as of October 6 some five or six millwrights had been put to work. Bryant then informed Griffin that he had hired George F. Downs as a millwright foreman and had delegated to him the full authority and duty-of employing all necessary personnel necessary to perform the millwright or machinist work ; that Downs had been instructed not to hire any men through either the Carpenters Local or the Machinists Local, inasmuch as Griffin and Vaughn had not been able to reach an agreement on the jurisdictional dispute. Following the above meeting with Bryant, Griffin telephoned Vaughn. In this connection Griffin testified : Q. Can you tell us what that conversation was? A. Yes. After I learned from Mr. Bryant that he had informed Mr. Downs not to hire any men out of either local , I called Mr. Vaughn and told him, and said, "Brother Vaughn, do you know we are getting a run-around on this job at the KOW?" He said, "No ; what do you mean ?" I said, "Do you know he has hired a fellow Downs as foreman-millwright foreman-and he is hiring men from Cairo and Benton, and is not hiring men from our organization, or yours either ?" And he said, "Mr. Griffin , Mr. Downs is a member of our organizations and he will look after our interests." During the hearing Respondent introduced in evidence a document as follows : OFFICE MEMORANDUM To : George F. Downs, Millwright Foreman . Date : Oct. 5, 1949 From : W. R. Bryant, General Supt. Subject : Millwrights, Employment Of-Project Contract WAL pb=6107 After you have made a survey of the processing to be done on this project, it is requested that you hire sufficient number of qualified workmen to perform this work within the time limitation allotted by General Service Administration to complete. There can be no discrimination as to Race, Color, Creed, or Religion and all men that you contact or hire are not to be questioned about their affilia- tions with labor organizations, or whether they are members. It is expected that you will adhere strictly to this policy. Yours truly, (S) W. R. BRYANT, General Supt., Whittenberg Construction Co., Kentucky Ordnance Works, Paducah, Kentucky.' 9 The record discloses without dispute that Downs was millwright foreman when KOW_ was first constructed ; that such construction was had under a closed-shop agreement by AFL Building and Construction Trades Council and Rust Engineers Co. ; and that approxi- mately 80 percent of the millwrights employed on the KOW project in 1949-1950 who had been employed by Downs on the initial construction were Carpenters -Millwrights members of necessity. Bryant testified that he learned of Downs' prior work on KOW and em-, WHITTENBERG CONSTRUCTION COMPANY 39 It should be noted that the above communication is signed as "W. R." Bryant. The record discloses that Bryant's name as testified to by him is "Russell" Bryant ; and his name appears elsewhere in the record as Charles Russell Bryant. When Bryant informed Griffin that Millwright Foreman Downs was to do all the hiring directly and not through either the Carpenters local or the Ma- chinists local, Griffin asked Bryant if he could send IAM members out to KOW as individuals and let them "hire in as such" and also asked that he be permitted to accompany the men and listen to them being interviewed. Bryant replied that the men would not be interviewed in Griffin's presence, and if they did come out to come alone, or together, "as long as I (Griffin) wasn't in the crowd." 2. The machinists' request for employment ; Respondent's refusal to hire any machinists for millwright work As the result of a rumored shutdown, which later came to pass, several IAM members employed by the Illinois Central Railroad Company, at Paducah, Ken- tucky, and vicinity, contacted Griffin, who, as is detailed in part hereinabove, sought to line up the machinist and millwright work at the KOW project for members of his organization. He recommended that the machinists call on Bryant at the KOW project. On or about September 16 a group of eight ma- chinists," riding in Choate's station wagon, drove to the KOW project in an attempt to contact Bryant. They spoke to the guard at Post No. 1, who informed them where Bryant's residence was located and suggested that the group con- tact him there. The group drove to Bryant's residence and waited until he arrived. There- after, with Kelly as the chief spokesman for the group, Bryant was informed that the group were all machinists, owned machinists' tools, were members of the IAM, and having been informed that Bryant would need men for the work that was about to start. Bryant replied that as a result of the strike of the Electricians and Pipefitters he did not know when the work would get under way and indicated that it could not get under way until the strike was settled. Kelly asked if he might have Bryant's telephone number and call him later. Bryant gave Kelly his telephone number. Bryant was asked if he would take applications of the group but refused to do so because there were no jobs open as the strike was still on, but stated there would probably be jobs open later. Subsequently and on October 24, 1949, Weitlauf, King, James Bradley Smith, and McKinney called on Bryant at KOW. On this occasion Weitlauf acted as ployed him upon the recommendations of persons then connected with KOW ; delegated to him full authority to employ necessary workmen to complete the KOW job ; that Downs was hired under instructions above set out as a result of the jurisdictional dispute between Carpenters-Millwrights and IAM-Machinists; and that he (Bryant) did not know whether Downs belonged to the Carpenters -Millwrights or the IAM. Downs testified that as to the 34 or 35 millwrights employed, that he did not know whether they were members of the Millwrights or Machinists , as he had "not seen their books." Downs admitted that he was a member of the Carpenters -Millwrights , AFL and had deposited his union book with the Paducah local before going to work. Bryant testified that he has been a member of the AFL Carpenters since about 1919, but as a construction superintendent for 11 or 12 years past has not been required to pay dues . The record discloses that none but Car- penters-Millwrights members of the Paducah local were employed on the millwright and machinist work performed by Respondent. On the basis of the foregoing and the record the undersigned cannot and does not credit the testimony of either Bryant or Downs wherein they disclaim knowledge that all or any of the millwrights hired were members of Carpenters-Millwrights, AFL or that it was tacitly agreed and understood that none but AFL millwrights should be employed on the KOW project. 10 Weitlauf, Choate, King, James Bradley Smith, James Edwin Smith , McKinney, William E. Sloan, and Kelly. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spokesman. The group waited at the plant gate until Bryant came out and then talked to him. Weitlauf stated that he had heard the strike was settled, that the Company would need men, and that the group then present would like to go to work. Bryant replied in substance that he had hired Downs as mill- wright foreman to take care of the hiring of the men ; that it would be all right for the group to come out and see Downs at the plant the next day; and on this occasion asked if the group then present were qualified mechanics. Weitlauf replied that they were. On the following day, October 25, King and James Bradley Smith went to the KOW plant and told the guard at the gate house that Bryant had said that they might come out and see Downs that morning. A second guard then went to the office to see Downs and returned and reported that Downs said he did not need any men. King and Smith continued talking to the second guard and insisting that they were entitled to see Downs as a result of Bryant's statement of the day before, whereupon the second guard made a second trip to the office after which Bryant came to the gate and stated that he did not have things lined up as yet. Smith then asked if it would be all right to telephone Bryant later on that week and Bryant replied in the affirmative. Bryant also stated on this occasion that they had 18 millwrights on the job; that he was not accepting men from either the Carpenters or the Machinists locals as such. When Smith in- quired as to when Bryant thought the matter would be straightened out, the latter replied he thought the first of the (next) week. When Smith asked if it would be all right to call at his residence, Bryant stated, "Yes, it would." On October 31 or November 1 Smith called Bryant•by telephone, stated that he was one of those who had been out previously, and asked if things had been straightened out. Bryant replied, "Downs and I have talked it over and decided- that the 18 men are all we are going to need." The record shows without dispute that after October 24, 1949, the Respondent- hired 16 millwrights, none of whom were machinists and all of whom were car- penters-millwrights and members of the Carpenters local in Paducah a. Claimants who applied to Bryant for employment Weitlauf has been a member of the IAM some 6 or 7 years; he owns machin• ists' tools ; and was and is qualified to dismantle machinery. As set forth above,- Weitlauf was in the group who called on Bryant on September 16 at which- Kelley acted as the chief spokesman for the group of eight. He was also in the group of four who called on Bryant on or about October 24 also as found above, and on which occasion he acted as spokesman. Weitlauf's third meeting with Bryant took place on or about November 3, 1949, on which occasion he called at KOW in the morning in company with Claimant Dowell. On their arrival at Post No. 1 guardhouse at KOW entrance, the guard- at first refused to let Weitlauf and Dowell enter the premises. Dowell in- formed the guard that Bryant had, a few days previous (the October 24 meet- ing) told the group then present to tell the guard to let any members of the group- in with a result that the guard issued a pass to Weitlauf and Dowell. When the two entered the plant and got in touch with Bryant, Dowell asked him if he was using any millwrights and Bryant replied no that he had all he could ever use." - "After the date of this meeting the Respondent employed 16 carpenters -millwiights^ between November 8, 1949, and, Deeembe4 19;: 1949, all,of.: whom were members of the- Carpenters and none of whom were member of the IAM. WHITTENBERG CONSTRUCTION COMPANY 41 Dowell had been a member of the IAM since 1934; owns machinist's tools ; and is qualified to dismantle machinery. At the suggestion of Griffin, in company with Claimant Ham on October 24, Dowell went to the KOW plant with a letter of referral which had been given to him by Griffin. He presented the letter to a guard and received a pass for himself and Ham to enter the plant. In their talk with Bryant, the latter stated (after Dowell had handed him Griffin's letter of referral), that he had no openings for millwrights that they were not using millwrights on the job as they were "just cleaning up the plant." Dowell then informed Bryant that he had just come off a job at an ordnance works at the U. S. Naval Gun Factory at Louisville, Kentucky. Bryant then stated that Dowell would have to talk to Downs. Bryant further stated that since he had been out of town he was busy and could not take care of Ham and Dowell and left them. Thereafter and on about October 27 Dowell returned to the plant alone and called on Bryant. The latter said Dowell was to come back the next week .and the latter insisted that Bryant had told him to come back the latter part of "this" week. Bryant then informed Dowell that he was sorry that they were full up and did not need anyone. Dowell reiterated the fact that he had just come off a similar job at Louisville, was qualified, and that Paducah was ]iis home. As is stated in connection with Weitlauf's case next above, Dowell also called on Bryant on or about November 3, with the results detailed hereinabove. Hain, 63 years of age, has been a member of the IAM since 1910; he owns machinist's tools, such as calipers, squares, rules, "and such as that," and "works on the floor." On October 23, 1949,12 he went to the KOW project and requested the guard to permit him to enter the plant to see Bryant. The guard informed him that he must get a referral letter from the business agent of his Union. On the following day, October 24, Hain called on Griffin, IAM repre- sentative, in company with Dowell. Griffin gave Hain and Dowell a joint letter of reference which they took with them on that morning when they went to the KOW project where Dowell presented the letter of referral to the guard who issued passes to both of them to enter the plant. When they entered the plant, Dowell presented the referral letter to Bryant, who interviewed him separately and apart from Ham. At the conclusion of the interview between Bryant and Dowell, Ham entered Bryant's office where he asked Bryant if he had a job for a machinist or millwright. Bryant replied that he was sorry, but that he was filled up, and asked Ham if he belonged to the "order." Ham replied that he belonged to the AFL Machinists.' Bryant told Ham that he might return to the KOW project at a later date. This was the only occasion on which Ham made application for employment. James Bradley Smith has been a member of the IAM about 8 years, owns machinist's tools, and is qualified to dismantle machinery. Smith was in that group which called on Bryant at his residence on or about September 16, 1949, and was also present at the meeting of October 24 at which Weitlauf, King, and McKinney were also present, all as is detailed above. On October 27 Smith, in company with Claimant King, went to KOW project and Post No. 1 where they informed the guard that they were there as Bryant had said they could either see Downs (in the office) or he would see him at the gate. The guard stated that he would do what he could. A second guard was sent to the plant 13 Ham could not recall this date, but it developed that on October 24, in company with Dowell, he returned to the KOW project and had an interview with Bryant. 33 At the time of this interview the Machinists were not affiliated with the AFL, but it appears at the time Ham joined the IAM, it was then affiliated with the AFL. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and returned and stated "... Downs was busy and couldn't see us"; when Smith and King insisted that Bryant had stated they could see Downs, the guard returned to the plant a second time, after which Bryant came to the gate and Smith stated he and King were the men "who had been over seeing" Bryant the other night and that they still needed work. Bryant replied that they did not have things "straightened out at present like he wanted to." And added that they had 18 men on the job. Bryant further stated that he was not accept- ing men from either the Carpenters or the Machinists locals as such. On October 31 Smith telephoned Bryant and asked if things had "straightened out." Bryant replied, "Downs and I have talked it over and decided that the 18 men are all we are going to use." 76 Kelly, 29 years of age, has been a member of the IAM off and on for 21 years ; he owns machinist tools, and is qualified to dismantle machinery. As found and stated hereinabove, Kelly was among the group of eight who called on Bryant on or about September 16, 1949, and was the chief spokesman on this occasion. On or about October 1, Kelly called Bryant at the latter's residence and introduced himself as one of the group who had talked to him September 16 concerning employment. Kelly stated that he was a machinist, had the nec- essary tools, and had been in the (machinist) business for years. He asked in view of the fact that the strike was over, if Bryant could use him on the KOW project. Bryant replied, "Well, not at the present time." Bryant then added that he did not care what crafts were employed so long as they had the tools. On or about October 7, Kelly again called Bryant who stated he could not put on anybody at that time. On a subsequent date Kelly made a third call but the lady who answered the phone stated that Bryant was out of town. James Edwin Smith has been a member of the IAM for about 8 years ; he owns machinist tools and is and was qualified to dismantle machinery. He was one of the eight complainants who called on Bryant on September 16 at the latter's residence at which time Kelly was the chief spokesman for the group, all as is found in detail hereinabove. Smith was also in that group that called on Bryant on October 24 at which time Weitlauf acted as spokesman. Smith who was in ,the hearing room at all times during the hearing testified that he had heard the testimony of other claimants who attended both the September 16 and the October 24 meeting and his recollection of events is substantially the same as testified to by other claimant witnesses 1° King has been a member of the IAM for about 8 years ^ he owns machinist tools and is qualified to dismantle machinery. As has been found in detail hereinabove, King was among the group who called on Bryant at his residence on September 16; he was also with the group who called on Bryant'at the plant on October 24, at which time Weitlauf acted asl spokesman. King was also at Bryant's residence for a second time with James Bradley Smith on or about 14 The record shows that Bryant made this statement on a number of different occasions, but inasmuch as the record discloses that only carpenter -millwrights were hired and no machinists were employed , such statement, in the opinion of the undersigned, was mere lip-service to the Act. 15 As stated hereinabove, subsequent to such date, Respondent hired 16 additional mill- wrights, none of whom were machinists. With reference to Smith's qualifications he testified : Q. During either of those two meetings, were you ever personally asked by Mr. Bryant about your qualifications for the job out there? A. No, sir ; I don't think he asked us-no, he just came out and said in the conver- sation the ones he hires should be qualified . He didn't ask personally. Of course, it was brought out when we introduced ourselves. Mr. Kelley said we were qualified- machinists. WHITTENBERG CONSTRUCTION COMPANY 43 October 25 at which time the events and episodes found in connection with James Bradley Smith's case detailed above occurred and as testified to by King were substantially the same as disclosed by Smith's testimony. Herrold, 50 years of age, has been a member of the IAM off and on for 23 years ; he owns machinist's tools and is qualified to dismantle machinery. On October 10, 1949, at the suggestion of Griffin, Herrold went to the main gate of the KOW project, spoke to the guard and told him that he wanted to enter the plant to see Bryant. The guard with whom Herrold was acquainted told the latter that he could not enter the plant must wait outside, and "that they wasn't seeing anyone. .. ." The guard then told Herrold that Bryant was at Kevil and if he would wait there at the gate the chances were he would get to see Bryant "when he comes in." When Bryant drove up in his car, the guard talked to him, after which Bryant motioned Herrold to come to his car and he did so. Herrold told Bryant that Griffin had called him by telephoning the night before and informed him that "KOW were hiring." Bryant replied that he did not need anyone then, and did not know when he would need further help.17 McKinney has been a member of the IAM for about 5 years ; he owns machinist tools and was and is qualified to dismantle machinery. As detailed herein- above, McKinney was among the group that called on Vaughn about the middle of September 1949; he was also a member of the group of eight who called on Bryant at the latter's residence on September 16, on the events such meeting has been found and set forth hereinabove ; and he was also a member of that group, that met with Bryant, on October 24, at which meeting Weitlauf was spokesman for the group. The events of this meeting have been sufficiently found and detailed above. b. Complainants who applied to both Bryant and Downs Choate has been a member of the Machinists about 5 years ; he owns and has his own machinist tools and is and was qualified to dismantle machinery. He was among the group of eight who called on Bryant on September 16. On or about October 12 or 13 he drove together with Sam J. Sloan and Earl Sloan to the KOW project in the morning and they were told by the guard that they could not enter the premises without a letter of referral from the union business agent. While Choate and the Sloans were at the gate two other men arrived at the gate and said they did not have a letter from their business agent, because he was sick. They received a pass from the guards and went into the plant and shortly thereafter returned and surrendered their passes. About 30 minutes later Bryant and Downs came to the gate. Choate introduced himself and said that he understood they were hiring men out there and that they were looking for machinist work. Bryant said, "We have 6 men coming in now. Have to put these men to work before I hire any more." He then said, "I will take your phone number and give you a ring when I need someone." Choate then gave Bryant his telephone number ; when the two Sloans offered to give their telephone numbers, Bryant said, "No, I will contact Choate and he can let you all know." Sam J. Sloan is 54 years of age, and has been a member of the IAM during different periods. On one occasion he was a member for 5 years when working on the Gilbertsville Dam after which he returned to Paducah and rejoined the 17 The record discloses that 4 millwrights were hired on October 12 or 2 days after Herrold applied for a job. In all , 26 men were hired after Herrold 's application. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD local TAM "something like four years ago" ; he owns machinist tools and is quali- fied to dismantle machinery. He was in the group composed of his son, William E. Sloan and Choate which case is discussed next above. His testimony in con- nection with the meeting of October 13, 1949, with both Bryant and Downs is substantially identical with that of Choate. This was the only occasion on which Sloan made application for employment with the Respondent.18 William E. Sloan is 37 years of age, and has been a member of the TAM for 18 or 19 years ; he owns machinist tools and is qualified to dismantle machinery. Sloan was referred to the KOW project by Griffin and on or about September 13 called Bryant by telephone about 5: 30 or 6 o'clock in the evening. When Bryant answered the telephone, Sloan asked him if he needed any machinists or millwrights stating that he was a machinist and could also do millwright work. Bryant "said at that time he didn't need anyone, that I should contact him in two or three weeks when he might need someone " On the occasion of the tele- phone call, Bryant asked Sloan if he had tools. Sloan replied that he had. Sloan was among the group of eight who called on Bryant on September 16 with the results found in detail hereinabove. On or about September 25 or 26 Sloan went to Bryant's house at a time when a "group of fellows were just leaving" and after the group had left, Sloan asked Bryant if he needed a machinist or millwright Bryant replied, "Not at the present time," that he had a number of men working and might need more later on On October 13 Sloan went to the KOW project and to the gate with his father, Sam Sloan, and Choate., The facts of this meeting are described in connection with Choate's case detailed above. c. Cladlmamts who contacted Downs Purcell, 45 years of age, has been a member of the TAM about 13 years ; he owns machinist tools and is and was qualified to dismantle machinery. On or about October 10 Purcell passed by the KOW gate about 8 a. in. and asked the guard whom to see with reference to obtaining a job. The guard informed him that he would have to be referred by the Union, but did not designate a par- ticular union. Purcell then proceeded to Paducah and got in touch with Griffin who advised him to see either Bryant or Downs and also mentioned Vaughn's role in connection with Carpenters-Millwrights. On October 12, Purcell went alone to the KOW project arriving about 7: 15 a. in. The guard told, him that it would be "okay" for him to see Downs when the latter came to the plant that morning. Downs arrived about 7: 30 to 7: 45 a. in. and Purcell approached him and asked for a job.39 Downs informed Pur- cell that he had all the men he needed then ; that he was figuring on more mill- wrights there ; and when he needed them.he would be glad to contact Purcell "and possibly give" him a job. On October 17 or 18 Purcell again returned to the KOW project alone and arrived at the guardhouse about 7: 30 a. in. When Downs arrived for work Purcell again got in touch with him at the gate, at which time there were 8 other persons present. Downs. took 6 men "along with their tool boxes" into the plant. Purcell asked Downs what craft the 6 men belonged to and Downs 18 It should be noted , however , that Bryant took Choate's telephone number and stated that he would give him a ring when he needed someone ; and Bryant also stated to the Sloans, when they offered to provide their telephone numbers, " . . I will contact Choate and he can let you all know." As stated hereinbefore , when the Sloans started to give Bryant their telephone numbers, the latter stated, "No, I will contact Choate and he can -let you all know." 29 Purcell testified that he had known Downs "for a pretty good while." WHITTENBERG CONSTRUCTION COMPANY 45 replied that they were millwrights, and had been notified about a week before to report for work. On October 24 Purcell again contacted Downs by arriving at the plant early and again asked for a job. Downs stated that he had 18 or 20 millwrights and it looked like that would be all he would need. On October 25 or 26 Purcell got a letter of referral from Griffin which he presented to the guard, and was permitted to enter the plant where he saw Bryant. He then presented Griffin's letter of referral to Bryant, who iterated Downs' last state- ment to the effect that they had 18 or 20 millwrights or about all they could use.° ( Emphasis added.) Terry, 46 years of age, has been a member of the IAM for approximatel3 15 years, owns machinist tools, and is and was qualified to dismantle ma- chinery. On October 24, 1949, Terry, in company with Rupche and one I. E. Kemp,21 at the suggestion of Griffin and with a letter of referral from him, went to the KOW project about 2 o'clock in the afternoon on that day. The three went to the guardhouse at the gate and asked the guard if they could go into the plant to see Downs. The guard replied that he did not know where Downs was and suggested that the three in the group stay at the guardhouse gate until Downs left at the close of his workday, at which time the guard said he would point Downs out to the group. Downs came out about 4: 45 and the guard pointed him out to the 3 men. Terry accosted Downs and acted as spokesman for the 3 men and told him that Griffin had stated that Downs was doing some work at the KOW project and had given him a letter of referral to use in an effort to get a job. Downs stated that he had about 18 men working, that he did not think he would need any more, and in the event he did need any more, he would let Mr. Griffin, the business agent, know, and he could get hold of Terry and the others. During the conversation Downs asked Terry how long he had been a machinist. Terry replied that he had been a machinist "a good long time." Terry testified that he made no further effort to contact Downs but waited for Griffin to let him know, and "nobody ever did let me know." Rupche, 49 years of age, has been a member of the IAM 13 years, owns ma- chinist tools, and is qualified to dismantle machinery. Rupche was one of the three who called on Downs on October 24, at which time Terry was spokesman. Rupche's testimony coincides with that of Terry's, referred to above, except that Rupche stated that Downs said he had 14 men working at that time, whereas Terry testified that Downs said he had 18 men working. In other respects, Rupche's testimony was substantially identical with that of Terry's. Vines, 54 years of age, has been a member of a local of the IAM at Paducah for about 1 year. Part of that time he was a member of the local at Gilberts- ville, where a certain dam was constructed, for a period of 5 years22 Vines is a journeyman machinist, owns machinist tools, and was and is qualified to dis- mantle machinery. About the middle of October 1949, Vines was referred to the KOW project and Respondent Company by Griffin. He went to the project in the middle of the afternoon to the first guardhouse at the gate entrance. In this connection Vines testified : Q. Will you tell us what happened when you got to the guard house? A. The guard said I couldn't go in, and that he would call for Mr. Downs, I said I was sent out there, see?-what my business was-to see about the 2° As noted above, Respondent hired 16 millwrights subsequent to the date of Purcell's last visit to the KOW project. 21 Kemp is not a claimant herein, and was not called as a witness. 21 The record does not give the location of Gilbertsville, as to State or States. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job, and he said "I will give you a pass to the head guard, that's Mr. Rogers." So I went inside then, down to the main guard house, and Mr. Rogers came out then and talked to me about it, and he said "You can't go over on the job at all. They don't allow anybody to come over." I told him what I came for and he said he would talk to Mr. Downs for me. Q. Did you tell him who sent you out? A. I told him who sent me out. Q. Did he do anything? A. He went and talked to Mr. Downs, Rogers did. Q. Were you present when they talked? A. No, I didn't get to go over. They didn't let me over. Q. Did Chief Rogers return? A. Chief Rogers returned, yes. 'Q. Did he say anything to you? A. Mr. Downs said they had all the men they wanted right now. All they were hiring. If I wanted a job as millwright, I would have to contact the Carpenters Union and sign up with them, and they would call me through the Union. ' In this same connection, Chief Rogers, in part, testified : Q. Did you ever speak to Mr. Downs after somebody had talked to you at the gate asking. for a job as a machinist or a millwright and come back and tell the individual that Mr. Downs said he should go through the Union hall? A. Not that I remember; No, sir. Q. Were you given to understand in any way that Mr. Bryant and Mr. Downs were hiring Union people only? A. Well, I understood it was all coming through the different Locals, and things like that. Now as far as who they hired, it was no concern of ours ,only the security of the plant. Q. How did you understand that? On what basis were you given to understand that they were doing that? A. State that over again. Q. I will rephrase it. I don't think it is clear. I said, You just stated it was your understanding they were hiring through the various Locals. A. That's right. Q. What did you base that understanding on ; on conversations, or just what? A. Well, all the work I thought was going on was suppose to go through the Locals and their business agents would call them and send them out. That's all as far as I know. ,On cross-examination, Rogers, in part, testified : Q. All right. Now, did you ever tell William R. Vines or anyone, did you, who ever it was that appeared at the gate in reference to what Mr. Goldstein stated ; that you were to carry a message back to Mr. Downs and you came on back and spoke to the man. You never told him-whether his name was Vines or not-that the man would have to be a millwright, did you? A. Oh, No. I didn't know what they were hiring, or what the capacity of the job was. Q. That's right. And Mr. Downs never at any time told you he was only going to recognize millwrights? A. Not that I know of. [Emphasis added.] WHITTENBERG CONSTRUCTION COMPANY 47 The most that may be said for Rogers' testimony is that if he did call on Downs on behalf of Vines, and thereafter reported to the latter that' Downs had stated that he (Vines) would have to sign up with the Carpenters and be called through the Union, is that he does not remember so doing. The under- signed is of the opinion that a professed lack of memory does not constitute a denial. On the whole the undersigned credits Vines' statement and believes Rogers gave the report to Vines as testified to by the latter. The undersigned does not, however, conclude or find that Downs actually made the statement to Rogers as testified to by Vines. It may well be, in view of the fact that Rogers understood that all employees on the project were being hired through business agents of Paducah locals, that he took it upon himself to report to Vines, what he assumed would be Downs' statement. In any event, it is clear that Vines made an effort to seek employment as a machinist on the project and is so found. As to 16 claimants whose efforts to get employment with the Respondent are discussed herein next above, the record discloses without dispute none of them were or had been members of the Carpenters ; and that the Respondent was informed and advised they all were members of the IAM.' 3. Issues; contentions; conclusions The Respondent contends in substance and effect that: (1) Inasmuch as the Carpenters-Millwrights and the IAM failed to compose their jurisdictional dis- pute, as recommended by Superintendent Bryant, the latter was forced to .seek millwrights and machinists without referral from or through either Union and secured such employees by hiring Downs as a millwright foreman with instructions and sole authority to hire qualified workmen without discrimi- nation as to race, color, creed, or religion, and without inquiry as to their membership in or affiliation with labor organizations, and that Downs followed in- structions; (2) all millwrights or machinists hired, except Downs, who was hired by Bryant, were hired by Downs without knowledge by him or Bryant as to their union membership or affiliation; and (3) the fact that all millwrights and/or machinists hired proved to be members of the Carpenters and none were members of the TAM was the result of a coincidence and the -further fact that "They were just not at the right place at the right time." As to contention (1), it is clear that insofar as Downs' instructions pertained to union membership or affiliation of applicants for millwright jobs was con- cerned he was merely required not to question applicants personally, as to such membership or affiliation ; he was not restricted from ascertaining the union membership or affiliation of any applicant in any manner, except by personal- ly questioning him; nor was he prohibited from hiring or refusing to hire ap- plicants whose union membership was known to him or was made known to him by others than the applicants themselves. His instructions did not re- quire him to refrain from discrimination because of union membership or lack of it. The record contains no evidence indicating that any IAM applicant was denied employment because of race, color, creed, or religion, but does contain evidence, more particularly referred to below, that they were denied employment because of their IAM membership and lack of Carpenters-Millwrights, AFL, membership. Contention (1) as a defense as without merit and is so found. x8 The one possible exception to this finding is Vines. It is possible if not probable, Rogers assumed to deliver a message to Vines, which he believed would have met with Downs' approval, but without Downs' knowledge . Since the Respondent at least acqui- esced in the rule laid down by Facilities Superintendent Raper, that entry to the premises would be upon union referral only, knowledge of the statements made to Rogers by Vines may be imputed to the Respondent . It is so found. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to contention (2), Bryant testified that he hired Downs upon recommenda- tion of persons connected with KOW who informed Bryant that Downs was mill- wright foreman or superintendent when KOW was constructed and the machinery that Respondent was hired to dismantle was installed. Bryant, however, testi- fied that he did not know when he hired him, whether Downs was Carpenters- Millwrights or an IAM machinist?' In connection with Downs' union member- ship, he testified : Q Mr. Downs, when you go out on a job, which takes you out of the juris- diction of Local 812," do you always get a referral card or transfer into the local where you are working? A. That is right. Q. Is that what you did when you took on the KOW job? A. That is right. Q. You pay dues, do you not, in the local in the area (new area) ? A. That is a constitutional requirement of the organization. Downs testified that he contacted seven out of eight certain millwrights person- ally and had them come to the Paducah Carpenters' local and as to the eighth one, he arranged to. have Vaughn call him and tell him to meet with Downs the follow- ing day. Downs testified : Q. I believe you stated that you didn't know whether the men you met at Carpenters hall were actually A. F. of L. Carpenters. A. I did not. I never seen any books or cards n Q. Do you think it is sheer coincidence, then, that approximately 34 or 35 men including yourself, were hired and were members of this Carpen- ter's Union in Paducah? - A. They weren't members of the'Carpenters Union in Paducah. They cleared in here like I did after they went to work. Q. You mean that some of them had to transfer their card? A. That's right. The undisputed and credited testimony in the record discloses that in addition to Downs 34 Carpenters-Millwrights members of Paducah Carpenters Local No. 559 were employed and reported to work in numbers and on dates as fol- lows : 8 on October 6; 4 on October 12; 6 on October 24; 5 on November 8; 6 on December 12; 2 on December 13; and 3 on December 19. All were employed in 1949. On the foregoing and the record the undersigned concludes and finds that as to both Downs and Bryant they and each of them knew or had reason to, believe that all millwrights hired between October 4, 1949, the date Downs was hired, and December 19, 1949, were members of Carpenters Local No. 559, AFL, Paducah, Kentucky. 24 This testimony is not credited by the undersigned. Downs was hired as a result of a jurisdictional dispute between the Carpenters and the IAM. Bryant has been a construc- tion superintendent for 11 or 12 years for a concern which the record discloses does a considerable amount of building throughout the United States and must have known or assumed that Downs would not have been millwright foreman when KOW was constructed unless he belonged to the AFL Carpenters. Bryant is also an AFL Carpenter but pays no dues when engaged as a superintendent. a Cairo, Illinois. 28 Downs paid no dues to Vaughn during the time be was on the KOW job because his dues were paid up for that particular period in Cairo. The latter local would reimburse the Paducah local for the time Downs was at Paducah. 27 It should he remembered that these millwrights were a part of the group that worked under Downs when KOW was constructed under a closed -shop contract requiring member- ship in the Carpenters WHITTENBERG CONSTRUCTION COMPANY 49 71 Contention ( 2) as a Respondent's defense is without merit and is so found. A8 to contention (3), which is based upon,Bryant's testimony and the assump- tion that neither Bryant nor Downs knew that any of the 34 millwrights employed at the time set forth above, were in fact members of the Carpenters Local No. 559, AFL, when employed, yet from the 34 Carpenters-Millwrights and 16 JAM applicants or a total of 50 applicants for millwright jobs, the Respondent con- tends that the selection of the 34 carpenters-millwrights for employment was in no manner based upon their union membership and that the refusal to employ the 16 IAM members was not based upon their IAM membership and that the hirings and refusals to hire resulted as a matter of coincidence or as the result of chance. If the testimony of Bryant and Downs is to be credited, one must find, purely as a matter of coincidence, that Downs, on behalf of Bryant, selected and hired 34 applicants out of a, total of 50, as millwrights, without knowledge of the union membership or affiliation of any of the 50 applicants, and in so doing selected for hire only those applicants who were members of Carpenters Local No. 559, AFL. The mathematical possibility that selection of the 34 applicants hired on different dates between October 6 and December 19, 1949, bore no relationship to their common interest in and membership in Local No. 559, but resulted from the operation of chance, is exceedingly remote.28 While such possibility, however remote, may not be ignored altogether, the mathematical improbability that the union membership of the 34 successful applicants in Local No. 559 was disre- garded as a relevant factor in their choice for employment is so great as to cast the burden upon the Respondent to come forward with a plausible and con- vincing explanation demonstrating that the action taken by it with respect to each affected employee was based solely upon nondiscriminatory consideration. This the Respondent has not done. It has chosen to rely upon its alleged instructions to Downs to employ competent workmen without discrimination against any applicant for a job because of union membership or affiliation or the lack of a particular union membership or affiliation, whereas the rec- ord clearly discloses by a preponderance of the credible evidence that Downs confined his employment of millwrights exclusively to members of Local No. 559, AFL, and thus made Vaughn's boast to Griffin, when he said : "Mr.,Grit ln, Mr. Downs is a member of our organization and he will look after our interest," come true. Contention ( 3) as a Respondent's defense is without merit, and is so found. 4. Conclusions Upon the foregoing and the record as a whole it appears that the Respondent, by its Superintendent of Construction Bryant, tacitly entered into a closed- shop agreement covering carpenters, and carpenters-millwrights, electricians, steamfitters, painters, iron workers, and laborers with Paducah Building and Construction Council, AFL, providing that Respondent would employ only AFL craftsmen on the KOW project ; that when Griffin, as IAM representa- tive, insisted that the machine work should be assigned IAM members, rather than to Carpenters-Millwrights, Respondent, after the Carpenters and the IAM 28 On the basis of pure chance, the mathematical possibility of hiring these 34 applicants who were members of Local No 559. out of the total of 50 applicants, and no others, was one chance in 5 trillion The situation is comparable to that of a blindfolded person selecting at random 34 white marbles in succession from a bowl containing 50 marbles, 16 of which are black, and 34 of which are white. See J. V. Uspensky, Introduction to Mathe- matical Probability (1st Ed.) McGraw-Hill Book Co., Inc p. 19; and see U. S. Trailer Mtg. Co., 82 NLRB 112. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to reach an accord on division of machine work, announced that no, millwrights and/or machinists would be hired through their respective unions„ and announced that Downs, hired as a millwright foreman, would do all hiring of necessary millwrights and machinists. It further appears that as to all crafts other than machine workers, the closed-shop arrangements continued, and as to millwrights and machinists,. Downs employed only carpenters -millwrights who were members of Local 559, AFL, and thereby granted to the latter full benefits of closed-shop agreement tacitly entered into between Respondent and the Council. All of which is so found. Upon the foregoing, the undersigned concludes and finds that the Respond- ent's refusal to hire those persons listed in Appendix A because they were not members of the Carpenters, and in order to discourage membership in, sym- pathy for, and activity on behalf of the IAM, thereby, discriminated against said applicants listed in Appendix A in regard to their hire and tenure of em- ployment ; encouraged membership in the Carpenters ; discouraged member- ship in the IAM ; and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; and thereby violated the Act within the meaning of Section 8 (a) (1) and (3) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, appearing in connection with its operatibns described in Section I, above, had 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 the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take the affirmative actions set forth below, which the undersigned finds will effectuate the policies of the Act. Having found that the Respondent _ has discriminated in regard to the hire and tenure of employment of the 16 persons listed in Appendix A, at- tached hereto, it will be recommended that the Respondent make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to that which he would have earned as wages from the date or dates upon which the Respondent discriminatorily refused to employ them, all as hereinabove found, to Febru- ary 12, 1951, the date of the completion of the KOW project." Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of February 12, 1951. The quarterly periods, herein called quarters, shall be- gin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each would nor- mally have earned for each such quarter or portion thereof, his net earnings SO if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter 31 + 29 Since the KOW project was completed on or about February 12, 1951, reinstatement may not be, and is, not, recommended. 88 Crossett Lumber'Companj, 8 NI.RB 440 , 497-8. 81 F. W. Woolworth Company, 90 NLRB 289. - JOHN L. CAMP 51 In accordance With the Woolworth decision, it will be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent an antipathy to the objectives of the Act as to justify an inference that the com- mission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that the Respondent cease and desist from in any manner interfer- ing with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Cecil Weitlauf, W. L. Choate, Anthony Daniel Kelly, James Edwin Smith, William Earl Sloan, Ben W. McKinney, Raymond K. King, James Bradley Smith, Z. C. Herrold, William R. Vines, Sam J. Sloan, Reginald Purcell, A. L. Ham, John W. Dowell, Earl D. Terry, and Fred O. Rupche, 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 such discrimination, by interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in 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 affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] JOHN L. CAMP. September 10, 1951 Decision and Order On November 4, 1949, the General Counsel of the National Labor Relations Board, herein called the Board, filed with the Board a peti- tion for issuance of an order to show cause why the Respondent, John L. Camp, an attorney at law, should not be excluded from fur- ther practice before the Board because of an assertedly unprovoked, premeditated, physical assault of an aggravated character committed by Camp upon Edmond Donald Wilson, the attorney representing the General Counsel, during the course of an unfair labor practice proceeding before Trial Examiner Henry J. Kent in Ohio Oil Com- pany, 92 NLRB 1597. 96 NLRB No. 7.