Charles Hart and Local 450

CHARLES HART AND LOCAL 450 213 reinstatement is made by Respondent , less his net earnings 9 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back -pay lia- bility for any other such period. It will be further recommended that Respondent make available to the Board and its agents , upon request, all payroll records, time- cards, and other records necessary to compute the back pay herein awarded. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Metco Plating Company, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local No. 1, International Union, Metal Polishers , Buffers, Platers, and Help- ers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act ad- mitting to membership employees of Respondent. 3. By discriminatorily discharging Gordon E. Brooks because he participated in a concerted work stoppage with other employees for the purpose of collective bar- gaining or other mutual aid or protection, thereby discriminating in regard to hire or tenure of employment or other terms or conditions of employment , to discour- age membership in a labor organization , and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent, Metco Plating Company, engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 9 See Crossett Lumber Company, 8 NLRB 440, 497-8. Charles Hart and Local 450, International Union of Operating Engineers, AFL and Ernest H. Liles. Case No. 39-CB-69. July 18,19.55 DECISION AND ORDER On February 28, 1955, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents, Charles Hart and Local 450, International Union of Operating Engineers, AFL, herein called Local 450, had not engaged in any unfair labor practices and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report at- tached hereto. On May 5, 1955, the Board denied the General Counsel's motion to reopen the record on the basis of newly discovered evidence which was not particularized. Thereafter, on May 9, 1955, the General Counsel renewed the motion, alleging specifically that the newly discovered evidence consists of a letter drafted by a duly authorized representa- tive of Local 450 on April 1, 1955, subsequent to the hearing herein ; that the letter allegedly states that a representative of Local 450 re- quested Ernest H. Liles, the Charging Party, not to work on the job on which he was then working and that this request covers the same work involved in this proceeding. The General Counsel asserts that 113 NLRB No. 24. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such evidence contains an admission by Local 450 of facts alleged by the General Counsel and denied by the Respondents, and as such con- stitutes material documentary proof supporting testimony offered by him and directly contradicting testimony offered by two of the Re- spondents' witnesses. On May 19, 1955, the Respondents filed a reply in opposition to the motion. The credited testimony in the record indicates that the Respondents urged Liles, the Charging Party, not to continue working on the job involved herein. It thus appears that the evidence now offered by the General Counsel would, at best, be cumulative of the testimony already in the record, and, therefore, not material. Even assuming such evidence were not cumulative, there is no showing by the General Counsel that such evidence in fact directly conflicts with the testimony of the Respondents' witnesses. Thus, no basis exists for reversing the Trial Examiner's credibility resolutions. Accordingly, the General Counsel's motion to reopen the record is denied. The Board has reviewed the rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby af- firmed. The Board has considered the Intermediate Report, the ex- ceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding brought under Section 10 (b) of the Labor Management Relations Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Houston , Texas, on January 11 and 12, 1955, pursuant to due notice to all parties . The complaint issued on October 24, 1954, by the General Counsel of the National Labor Relations Board 1 based on charges as amended , duly filed and served, alleges that the Respond- ents, Local 450, International Union of Operating Engineers, AFL, herein called the Union, and its business agent, Charles Hart, have restrained and coerced Ernest H. Liles, an employee of American Construction Company, herein called the Company, in the exercise of the rights guaranteed under Section 7 of the Act, in violation of Section 8 (b) (1) (A) thereof. The answer of the Respondents denies the commission of any unfair labor practices. All parties were present at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally and to file briefs. Thereafter counsel for the Respondents sub- mitted a brief which has been duly considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS The parties stipulated that the Company , a Tennessee corporation , maintains its principal office at Houston, Texas , where it is engaged in the general construction business. In the course of its operations the Company , during the period January 1, to December 31, 1954, purchased various building materials , such as brick, terra 1 The General Counsel and the staff attorney appearing for him at the hearing are referred to as the General Counsel, and the National Labor Relations Board as the Board. CHARLES HART AND LOCAL 450 215 cotta, steel, windows, doors, and glazed tile from places outside the State of Texas, which purchases amounted to approximately $ 1,100,000. In the same period the Company provided and supplied services to major oil companies located within the State, including Humble Oil Company, Union Oil Company, and The Texas Company, which services were valued in excess of $1,000,000 , $ 100,000, and $ 1,000, respec- tively. The Trial Examiner finds that the Company is engaged in commerce as defined in the Act. II. THE LABOR ORGANIZATION INVOLVED Local 450, International Union of Operating Engineers , AFL, is a labor organiza- tion as defined in the Act. At all times material, Charles Hart was employed as one of the business agents of the Union. III. THE ALLEGED UNFAIR LABOR PRACTICES Background of the Case James P. Miller testified the Company commenced construction of a high school at Bellaire, Texas, some 5 miles from Houston, about January 3, 1954, that the project was still in progress at the time of the hearing herein and that he has been, and is, construction superintendent of the job. Harry Duckett, vice president, stated the Company is a member of Associated General Contractors and Associated Industrial Contractors, which associations negotiated and executed a collective-bargaining agreement with the Union on behalf of the Company covering engineers and related classifications, effective for the period July 1, 1954, to July 1, 1955. The agreement provides that the Company recognizes the Union as a source of skilled manpower and "will use it as a source when in need of employees." In turn, the Union agrees, when requested, to exert every effort to supply skilled men The agreement further provides for a union steward on the job, who "shall be the last man laid off, provided that in the opinion of management he is qualified to do the work available." The events herein occurred in connection with the Bellaire High School project during August 1954, while the foregoing contract was in effect. The Issues The complaint alleges that the Union, through Hart, on or about August 19, threatened Liles with physical violence if he reported for work for the Company and refused to refer him to the job; about August 23, threatened Liles with loss of referrals to all jobs in the area and with loss of his union membership if he did not leave his job; and about August 26, again threatened Liles with loss of union membership if he did not leave his job with the Company. All of the foregoing acts were directed against Liles because he refused to assist the Union in concerted activities which refusal was not affected by any agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act and, therefore, in violation of Section 8 (b) (1) (A) thereof. The Respondents entered denials to the foregoing allegations. The General Counsel's Case Liles, a licensed engineer and a member of the Union since 1947, stated he was employed by the Company about March 1954 as steam hoist or steam rig operator. At the time of his employment A. C. Pickens, a member of the union, was also on the job as bulldozer operator, acted as union steward and both continued to work until about noon August 11, when Pickens was discharged. Liles related that Pick- ens called him the same evening and informed him that in accordance with Hart's instructions he was to report at the union hall the following morning After this conversation Liles said he called Hart but being unable to reach him, then telephoned Earl Ford, another union business agent, and advised him of his talk with Pickens. Ford confirmed the fact that Hart wanted him at the hall the next day and Liles promised to be there. Accordingly, Liles reported at the union hall on the morning of August 12, where he met Ford and inquired if Hart was ready to see him. Ford said that Hart was busy and unable to see him so Liles asked about returning to work and Ford told him, "You are not going to work because Charlie [Hart] said you wouldn't go to work until Pickens went back to work." Liles did not work for the next 6 days during which time he simply "sat up" at the union hall. About August 18, Liles met Hart, Ford, and Pickens at the hall at which time Hart stated 379288-56-vol 113-15 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he understood Liles had received a call from Miller and wanted to go back to work but that he should not do so. Hart explained that Miller had been wrong in dis- charging Pickens, that the Union was trying to straighten out the matter but Liles "did not want to go along" with them. Hart accused Liles of "crying on the con- tractor's shoulder" and telling Miller that he had been "pulled off" the job Liles admitted he told Millei he had been ordered off the job when the latter asked why he had not reported for work. Hart replied that if he returned to work "we will make it plenty hard for you " Liles charged Hart with having told Miller that he, Liles, "wasn't any good" as an operator, that he had laid off the best man and that he did not "appreciate" such remarks. Hart thereupon invited Liles to settle the matter then and there but Liles told him he did not come to the meeting to fight. Other words passed between them and then Hart suggested that Pickens go back to work, but Pickens declined for the reason that the Company needed a steam engineer and he was not qualified for the job. Hart, after mentioning that both men should go back to work, admitted he had been a "little mad" and told Liles, "you just make up your own mind as to whether you go back to work or not." The meeting then concluded. Liles admitted that no mention was made of a referral card on this occasion. Liles considered the matter and reported on the job the next morning. About 3 days later or August 23, Hart and Homer C. Pierce, business manager of the Union, came to the job and Hart told him, "you don't look good, I would advise you to get sick." Liles answered he was not sick whereupon Hart, after repeating his suggestion , declared, "I would advise you to leave the job or I will not be responsi- ble for what the Executive Board will do to you." Hart concluded by saying that Liles would not be able to work for the Company or any other employer "without a card " Pierce and Hart mentioned that a picket had been placed at the Com- pany's job for Humble Oil Company in Houston 2 and when Hart asked Liles if he knew he was working behind a picket line, he answered in the negative. Pierce remarked that Liles would not go along with them, so he and Hart left the job. Liles continued to work. Around that time the Union, in response to Miller's re- quest, sent J. P. Jordan to the job to operate the bulldozer Jordan worked about a day and a half when he was laid off. Around or after the above visit by Hart and Pierce, Hart telephoned Liles one evening about August 21, and informed him that some of the painters had asked him when he was going "to get them rats off the job" and "You can take that as it is " Hart told Liles not to report for work the following morning and when Liles said he intended to do so, Hart warned, "You go back out there I am going to take your book." Liles replied Hart was not "big enough" to do that and when Hart cursed him he hung up the telephone. Liles went to work the next morning, but around 1 o'clock he told Miller he had been ordered to stay off the job so he was leaving. Later, Liles admitted he left the job because it was raining although he did inform Miller of his conversation with Hart the previous night. The same afternoon Liles went to the union hall but he did not see Hart or any union officials nor did he advise anyone that he had left the job. On direct examination Liles said he was off the job until about August 29, but on cross-examination he admitted he was off only 2 days when Hart called him into the union office and advised that Miller wanted him back on the job. Hart told Liles he did not even know he had been off and when Liles said he had been off for about 2 days Hart remarked that he was a "little too late." Liles then asked Hart if he could have a referral card to the job but received no answer to his re- quest. Later that day he asked Ford for a referral card and he stated he did not need one. When Liles said he would like to have a card Ford repeated he did not need one. Liles went back to work the next day and has been continuously em- ployed by the Company since that date. Sometime in the latter part of August, seemingly around the 27th, Liles received a letter from the Union stating that charges had been preferred against him by H. D Mayfield,3 union president, but, according to Liles, since the Union adopted the "wrong procedure" he did not appear before the executive board Subsequently, he received another letter restating the charges. Thereafter, on August 30, Liles filed charles with the Board against the Union and Hart,4 and on some undisclosed 2 The picket was placed at this job around noon of August 11 3 These charges were of a general nature and were filed under article XXIII, subdivision 7, subsection 7 (e) of the constitution of the International Union, which specifies many giounds for fine, suspension, or expulsion of union membeis. 4 The original charge alleged a violation of Section 8 (b) (1) (A) and (2) of the Act while the amended charge filed on October 11, alleged violation only of Section 8 (b) (1) (A). CHARLES HART AND LOCAL 450 217 date also filed charges with the Union against Hart. Liles admitted that he discussed all these charges with Mayfield and on October 23, gave Mayfield the following written statement: I want you to state the reason why you are dropping said charge against me. Because E. H. Liles is willing to withdraw said charges against Charley Hart and Local 450. (Signed) E. H. LILES. In explanation as to which charges he was talking about Liles testified that he was "referring to both charges, if he would do lust what I asked him to do, and he didn't do it." Liles concluded by stating the charges against him were withdrawn and he understood his union charges against Hart were "dropped." Miller testified that he discharged Pickens on August 11 because his work was unsatisfactory. The same afternoon Hart telephoned Miller and complained that he could not fire Pickens because he was the union steward. Miller replied he had the privilege of discharging any employee if his work was unsatisfactory and, in addition, stated he did not need anyone on the bulldozer but required a licensed engineer who could operate the steam hoist as well as the bulldozer, water pump, and air compressor, and that Liles was qualified to perform all those jobs. Hart said that Liles was not a very good operator and ended the conversation by stating he would talk to Pickens and discuss the matter later. The next day, Hart returned Miller's call and when Miller said he wanted Liles back he stated he did not know what Miller was talking about. Miller explained that Liles had told him he had been pulled off the job and Hart commented "Liles talked too much." Hart then advised Miller he could not have Liles or any other engineer on the job until Pickens was rehired. Miller would not agree and Hart said, "That's the way it lays." Miller asked if he was going to take care of his engineering and Hart replied, "I will hire them and fire them." On August 13 or 14, Miller called Hart to find out whether the picket line at Humble Oil Company had anything to do with the Bellaire project and Hart assured him it had nothing to do with his job; that the picket was placed at Humble at 12:59, the afternoon of August 11, and Pickens was discharged at 11:30 that morning. Miller stated that Liles was away from work for 8 days (includ- ing Saturday and Sunday) and returned to the lob around August 20. Liles worked for about 5 days when he told Miller he better leave the job until he obtained a referral card from Hart. Liles was off for a day and a half when Miller called Hart and asked that he be sent back to work. Hart said that as far as he knew Liles was on the job. Miller repeated that Liles was not working, that he would like to have him back and that he was at the union hall. Hart commented that perhaps Liles did not want to work for the Company and that while he had not seen him at the hall he would look for him. A few minutes later Liles came to the phone and Miller, after briefly informing him of his conversation with Hart, asked Liles if he wanted to return to work. Liles said he wanted to come back, so Miller told him to report the next morning, which he did, and he has been working ever since Pickens was never rehired. However, about 3 weeks after his discharge Miller needed a bulldozer operator so he called the union hall and requested that Jordan be sent out. Joidan reported, worked for a day and a half and apparently left after re- ceiving a telephone call from Hart. The Respondents' Case Hart, business agent and assistant business manager of the Union, stated that Ford was in charge of the Bellaire project and one morning informed Hart that Pickens had been discharged and desired to discuss the matter with them. Ford, Pickens, and Liles then came into Hart's office. Hart could not remember the date of the meeting but fixed it as taking place the morning after Pickens' discharge, which would be Thursday, August 12. Pickens claimed he had been discharged because he had "persisted in trying the keep the job straight" and while he did not point out any particular incident which may have caused his termination he did state that the Company had been operating without oilers and mentioned that one of the union members, McClanahan, had been running a crane without an oiler. While Hart said he asked Liles something about the matter he did not relate the conversation or the subject discussed. Hart suggested that both men go back on the job and, after an argument between him and Liles, Hart told Liles "to go back out on the job, I was leaving it up to him." The meeting then concluded. Hart and Pierce went to the job on Thursday, apparently August 19 or 26, for the purpose of checking a rumor that McClanahan was operating without an oiler and on this occasion they passed by Liles, who was running the steam hoist, as they 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entered and left the property. Hart said he merely spoke to Liles as they came in and denied that he or Pierce had any conversation with him. In the meantime, Hart had heard nothing further concerning the meeting of August 12, until sometime the following week when Miller telephoned and re- quested that Liles be sent back on the job. Hart replied that as far as he knew Liles had been on the job. Miller then asked to speak to Liles and Hart went into the hall where he found Liles and called him to the office phone. Hart left im- mediately and did not overhear any of the conversation. This was the only tele- phone conversation Hart had with Miller and he denied he told Miller that Liles did not want to work for him. Hart had not seen Liles at the union hall for several days prior to Miller's call and stated if he had been at the hall for any appreciable time subsequent to August 12, it would have been called to his attention. Hart denied that he had any telephone conversations with Liles and denied that Liles ever asked him for a referral card during the period in question. Sometime in the latter part of August, Hart reported to the union executive board that Liles "had violated the oath" and as a result the president preferred charges against him and notified him of the same by letter. Thereafter, Liles filed charges with the Board and the Union. On October 23, Liles appeared for trial before the executive board and at that time Mayfield reported that Liles had agreed to withdraw the charges he had filed with the Board and the Union, if the Union dropped the charges against him. Liles then gave the Union the written memorandum set forth above and both union charges were withdrawn. Pickens, a member of the Union for a number of years, had been employed pre- viously by the Company on various other jobs and worked on the Bellaire project from February to August 11. During the period of his last employment Pickens operated the bulldozer and when there was no dirt to be moved was assigned primarily to running the air compressor or water pump. He also acted as union steward on the job and participated in the settlement of two jurisdictional disputes with other crafts and at times had discussions with Miller regarding the employment of oilers. Pickens related that on the morning of August 11, Miller stated they were out of dirt and he would have to lay him off for 2 or 3 days Miller further stated that Pickens had been too friendly with the men, that he kept them from working, and talked too much. Pickens admitted he had caught up with the dirt moving but that there were odd jobs available which he could do. Following his termina- tion Pickens went home and then went to the union hall but was unable to see any of the officials except the recording secretary. The same evening Pickens called Ford and informed him that he had been discharged and since he was the steward he thought the wrong man had been laid off. Ford replied, "You all or you better come to the Hail " Pickens believed it was necessary to have Liles present so he telephoned him and told him they should go to the hall the next morning to get the matter straightened out, which was satisfactory to Liles. Accordingly, Hart, Ford, Liles, and Pickens met at Hart's office on August 12. Liles, as stated by Pickens, declared he was being discriminated against because of Pickens and since he was anxious to return to work he should be permitted to do so at once and not be required to wait until some settlement or decision was made in the matter. Hart, Ford, and Pickens stated that Liles should not return to work until Pickens was put back on the job whereupon Liles and Hart became involved in an argument, in the course of which "both get pretty hot." Finally, Hart apologized and stated he would not tell Liles what to do, that he could go back to work if he so de- sired. Pickens was certain that Liles asked Hart for a referral card but Hart told him he was already on the company payroll and could return to work without a card The meeting then ended. Pickens did not believe Liles returned to the job on Friday or Saturday, August 13 or 14, for he saw him at the union hall on two occasions "during that week," seemingly the same week in which the discharge and the meeting took place. Sometime following the meeting, Hart informed Pickens he was working on the matter but when Pickens obtained other employment the dispute was apparently dropped Ford testified that Pickens called him one evening in regard to his discharge and he suggested that he come to the hall the following morning, August 12. He denied that he ever requested Liles to come to the hall or that he had asked Pickens to have Liles present. On the above date Liles approached Ford at the hall to inquire why Hart wanted him and Ford explained that they, together with Pickens, would confer with Hart as soon as he was free. The group then met with Hart and Liles immediately asked the reason for his being there. Ford did not state whether any explanation was offered to Liles but they then discussed CHARLES HART AND LOCAL 450 219 Pickens' layoff, with Pickens asserting he had been discharged because he had carried out his functions as union steward. In the course of the discussion Ford and Hart expressed the opinion that Pickens should be reinstated on the job. Liles, according to Ford, wanted to finish the meeting quickly so he could return to work and exhibited no interest in the discussion, other than going back on the job. In substance, Hart asked Liles if he thought he was doing right by wanting to go back to work when the Union had a dispute with the Company at the Humble Oil Company job. This led to a heated argument between Liles and Hart which con- cluded with Hart telling Liles he could go back to work if he wanted to. The meeting then ended. Ford said he saw Liles at the hall the next day but he could not recall seeing him the following week since he spent most of his time in the field. Ford stated that as far as he knew Liles returned to the job as his name never appeared on the "but of work list," which is a record of unemployed members maintained at the hall. Ford related that Liles came to the hall 1 afternoon, at least I week after Pickens' discharge, and asked for a referral card to the Bellaire job. Ford told him he was still employed on that job and did not need a referral card. Liles repeated his request 2 or 3 times but Ford refused to issue a card because it was not neces- sary. Pierce, union business manager and in charge of the business agents, stated that on one occasion he accompanied Hart to the Bellaire job for the purpose of check- ing a report that the crane operator was working without an oiler. As they walked through the building Pierce saw Liles at work and Hart simply spoke to him. Pierce denied that he or Hart engaged in any conversation with him and Pierce specifically denied making the statements related by Liles. Pierce said he and Hart briefly talked to McClanahan, the crane operator who was employed by a subcontractor, concerning the employment of an oiler and then left the job. Pierce acted as prosecutor of the charges filed against Liles and just before the matter was to be tried at a general meeting of the membership, Mayfield informed him that, in the best interests of organization, both he and Liles desired to drop all pending charges and asked if he had any objection thereto. Pierce said he had no objection whereupon Mayfield announced to the membership, there were about 500 men present, that the Union was dropping its charges against Liles. Concluding Findings The evidence establishes that the Company had two members of the Union in its employ in August, namely, Liles and Pickens, the latter being the union steward on the job. On August 11, Miller discharged Pickens because his work was unsatis- factory and he no longer needed a bulldozer operator. Miller retained Liles since he was a licensed engineer, Pickens was not, and was qualified to run the steam hoist as well as operate the bulldozer and perform other jobs that Pickens could do. At that time the Company and the Union were operating under an agreement which provided that the steward would be the last man laid off if, in the opinion of management, he was qualified to do the work available. After his layoff, Pickens called Liles the same evening and requested him to be at the union hall the next morning, August 12, to discuss his discharge. Liles went to the hall on August 12, but from that point forward the evidence is sharply conflicting as to subsequent events, especially as to the dates of their occurrence. It is undisputed that Hart, Ford, Pickens and Liles met at Hart's office for the purpose of discussing Pickens' discharge. However, Liles fixed the date of the meet- ing as August 18, while Hart, Ford, and Pickens said it took place on August 12. Having closely observed Liles as a witness and listened to his testimony concerning his anxiety to return to work immediately, the Trial Examiner finds it extremely difficult to believe that he would have remained idly at the union hall for 6 days without even attempting to contact Hart or Ford in an effort to resolve the matter, other than his brief conversation with Ford on the morning of August 12. Again, while Miller stated he had three telephone conversations with Hart between August 11 and 14, which Hart denied, his testimony did not touch upon the subject of the meeting or the date thereof.5 Since the complaint does not allege that the Respondents unlaw- GThe Trial Examiner believes thlt Miller talked to llait on August 11, but the conver- sation amounted to no mole than Hait's complaining about Pickens' discharge and promis- ing to discuss the matter after talking to Pickens The Tiial Examiner also believes that Hart and Miller conversed on August 12, and that I-Tart probably reniaiked that Miller could not have Liles or anyone else until Pickens was rehired Since Liles did return to work quickly, without Pickens, and Jordan was sent to the job at Miller's request, the statements have no importation bearing upon the issues herein 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fully removed or ordered Liles from the job on August 12, or prevented him from working until about August 19, it cannot be said that Liles was restrained or coerced in the exercise of the rights guaranteed him under the Act merely because he was off the project for 6 days. Moreover the unfair labor practices are bottomed ex- clusively upon alleged acts and conduct of the Respondents directed against Liles sub- sequent to the initial cessation of employment, specifically, threats of physical violence and economic reprisals "if he reported for work" and, after he did return to work, threats and warnings of economic sanctions "if he did not leave" his job. In view of the issues as framed by the pleadings the Trial Examiner is of the opinion that the primary question to be decided is what transpired at the meeting, rather than the date thereof. Consequently, the Trial Examiner will assume that the meeting took place on August 18, although if that point was material he would find, on the basis of the conflicting evidence, that it actually occurred on August 12. With respect to the meeting, Liles related that Hart declared Miller was wrong in discharging Pickens and that Liles instead of cooperating with them in their efforts to settle the matter insisted upon returning to work immediately. Hart also accused Liles of informing Miller that he had been "pulled off" the job and warned that if he went back to work, "we will make it plenty hard for you." In turn Liles ac- cused Hart of telling Miller that he was not a good operator and that he had laid off the best man. A heated argument ensued in the course of which Hart challenged Liles to fight but he answered he did not come to the meeting for that purpose. After the argument subsided Hart suggested that Pickens return to the job but he declined because he was not a licensed engineer. Hart then suggested that both men go back, which was agreeable to Liles. However, Hart admitted he had been mad and told Liles to "make up your own mind as to whether you go back to work or not." The meeting thereupon concluded. Liles did not ask for a referral card on this occasion and returned to work the next day. In substance, Hart, Ford, and Pickens testified that the group discussed Pickens' discharge, which was purportedly caused by reason of his activities as steward, and, as stated by Ford and Pickens, their group expressed the opinion that Liles should not return to work until Pickens had been reinstated. Hart testified that he sug- gested both men go back to work. All of these witnesses agreed that Hart and Liles became involved in a heated argument which ended with Hart advising Liles to go back to work if he so desired. From the foregoing testimony the Trial Examiner concludes and finds that the meeting was held in order to discuss the circumstances under which Pickens was dis- charged and, in view of the terms of the existing collective-bargaining agreement, there was certainly nothing objectionable to this procedure on the part of the Union. It is clear that Liles was desirous of returning to work at once without awaiting any determination of the matter and that Hart, Ford, and Pickens assumed the position that he should not do so but wait until Pickens or both of them could go back to work. The Trial Examiner entertains no doubt whatever that Hart and Liles ex- changed accusations of a personal nature, as described by Liles, and that they be- came embroiled in a heated argument in which strong language was used including an offer by Hart to fight Liles. Had the affair ended at that point there might be grounds for believing that Hart's challenge was motivated by a desire to restrain Liles from returning to work under threat of physical violence, rather than an angry remark uttered in hot argument, and that he directed statements of a coercive char- acter against Liles. However, all the witnesses uniformly testified that when the dis- agreement ceased Hart apologized for his conduct and expressly told Liles to go to work if he so wished and the meeting terminated on that note. Accordingly, Liles returned to the job the next morning. Under Section 8 (b) (1) (A) it is an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their rights guaranteed in Section 7, and the intent of the proscription as stated by the Board in Miami Cooper Company, 92 NLRB 322, 324, is "to eliminate physical violence, intimidation, and threats of economic action against employees. Where the union's conduct involved violence, threats thereof, or related conduct, or where the union had obtained or was attempting to obtain economic discrimination against particular employees, we have found such conduct proscribed by Section 8 (b) (1) (A)." Here, Hart's threatening statements to Liles were quickly repudiated and, as evidenced by the manner in which the parties concluded the meeting, any coercive effect they may have carried was unequivocably eliminated by his subsequent action. The Trial Examiner concludes that the evidence is insufficient to support a finding that the Respondents violated the Act. In refusing to enforce an order of the Board finding a violation of Section 8 (b) (1) (A) on the basis of a statement by a union representative that the employee would have to join the union because it ti CHARLES HART AND LOCAL 450 221 had a closed-shop agreement with the employer, the Court of Appeals for the Ninth Circuit, in N. L. R. B. v. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 127, 202 F. 2d 671, 673-674, stated: Even if this isolated incident did occur, to predicate a cease and desist order upon it is to magnify the inconsequential to the point where the action becomes an abuse of discretion. The Trial Examiner therefore finds that the Respondents did not threaten Liles as alleged in paragraph 5 (a) of the complaint and, as Liles admitted he did not even request a referral card on or about August 19, the Trial Examiner finds that the Respondents did not engage in any unfair labor practice as set forth in paragraph 5 (b) of the complaint. In many respects the testimony bearing upon events occurring after Liles' return to work is more conflicting than that relating to preceding occurrences. However the record discloses and the Trial Examiner finds, as stated by Liles and Miller, that Liles returned to work about August 19 or 20 (Thursday or Friday). There- after according to Liles, Hart and Pierce came to the job about 3 days later, which he placed as August 23, at which time Hart advised him to get sick. When he refused to comply with the suggestion Hart replied he would not be responsible for any action the executive board might take and that he, Liles, would be unable to work for the Company or any employer without a union card. Liles also testified that Hart telephoned him one evening and told him not to report for work the next morning and if he did so, his book would be taken away. Liles answered that Hart was not big enough to do that. Liles fixed the date of this conversa- tion as about August 21, and on cross-examination definitely stated it took place after Hart and Pierce had visited the job. On direct examination Liles testified he reported for work the next morning but around 1 o'clock he informed Miller, "I had been ordered not to come back out. So I pulled off the job again." When the Trial Examiner asked Liles to relate his conversation with Miller and the circum- stances under which he left the job, he replied, "Well, actually we were rained out that day." Liles went to the union hall that afternoon and "just sat there" without reporting to anyone that he had "pulled off or anything." Liles said he was off about 2 days and again returned to the job under the circumstances described below. Miller testified that Liles came back to the job on Friday, August 20, worked for 5 days and then told him that he better leave the job and get a referral card from Hart. Liles was off a day and a half when Miller called Hart, sometime after August 23, and requested that he be returned to the job. There is no substantial disagree- ment concerning this conversation as detailed, above, and Liles came back to work the following day and has been working ever since that date. Hart and Pierce denied having the foregoing conversation with Liles at the job and Hart specifically denied having any telephone conversation with him concern- ing his continued employment at the project. Hart admitted that Miller called him around the week following Pickens' discharge and that their conversation was sub- stantially the same related by Miller. The Trial Examiner will not attempt to resolve the flagrant conflicts and incon- sistencies in Liles' testimony for he is convinced that he either made up his story as he went along or he was hopelessly confused and bewildered concerning these events. Moreover, he plainly attempted to convey the impression that he was ordered off the job the second time by Hart and Pierce when they visited the project or as a consequence of Hart's telephone conversation with him, whenever it might have been, when in truth and fact he left his employment because it was raining. The Trial Examiner therefore finds Liles to be an unreliable witness and his testimony is rejected, except where it happens to be consistent with that of other witnesses. Hence, the Trial Examiner does not accept his version of the meeting with Hart and Pierce and credits the testimony of the latter individuals in respect to this incident. For the same reason the Trial Examiner credits the testimony of Hart and finds that he did not telephone Liles on or about August 21 and threaten him in the manner he claimed. On the basis of the credible testimony of Miller, the Trial Examiner finds that Liles worked approximately 5 days, until about August 26 or 27, when he was off a day and a half and came back to work as a result of Miller's request to Hart, as set forth above The Trial Examiner further finds on the basis of the testimony of Miller and Hart that Hart was unaware of the fact that Liles had left his employment on the second occasion. Ford admitted that Liles asked for a referral card just prior to his returning to work the second time and that he refused to issue one because he was already on the job and it was not essential that he have a card in order to return to work. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances it is sufficient to say that the issuance of a referral card was meaningless and it strikes the Trial Examiner that Liles was simply attempting to be smart or cagey in insisting that he be granted a card. The Trial Examiner therefore finds that the Respondents did not threaten Liles with loss of his union membership on or about August 23 and 26 or threaten him with loss of referrals on or about August 23, as alleged in paragraphs 5 (c), (d), and (e) of the complaint. In view of the findings herein it is unnecessary to discuss the cases cited by the General Counsel, Union Starch Company 6 and Radio Officers, 7 as supporting his contention that the evidence establishes violations of the Act as alleged in the com- plaint. Undoubtedly, these cases deal with broad principles involving unfair labor practices directed against individuals on the part of unions as well as employers but the facts therein are readily distinguishable from those found in this matter, so it cannot be said that they may be accepted and applied as controlling authorities in the present case. The Trial Examiner, for the same reasons, finds it unnecessary to pass upon the contention of the Respondents that at least certain acts and conduct on the part of the Union and Hart fall within the terms of the proviso in Section 8 (b) (1) (A), namely, that the proscription shall not impair the right of a labor organiza- tion to prescribe its own rules with respect to the acquisition or retention of mem- bership. Finally, the Trial Examiner attaches no particular significance to the fact that charges and countercharges were initiated with the Union by Hart and Liles, other than to complete the chronology of events herein. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of American Construction Company occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 450, International Union of Operating Engineers, AFL, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 3. The Respondents have not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] 6 Union Starch d Refining Co. v N L R B, 186 F 2d 1008 (C A 7), cert denied 342 U S 815 7The Radio Officers' Union of the Conimecial Telegraphers Union, AFL v N. L R. B., 347 U. S 17. Pacific States Steel Corporation and United Steelworkers of America District 38, CIO, Petitioner. Case No. 20-R-1093. July 18,1955 SECOND SUPPLEMENTAL DECISION AND ORDER On August 31, 1944, following a Board-directed election," the Board certified United Steelworkers of America, District 38, C. I. 0., herein called the Steelworkers, as the collective-bargaining representative of the Employer's production and maintenance employees, excluding, among others, "employees now represented by" International Union of Operating Engineers, Local 3, A. F. L., herein called the Engineers. On May 9, 1955, the Employer filed with the Board a request for clarification or interpretation of certification, asking the Board to decide whether the certification of the Steelworkers covers three job I :157 NLRB 1084 and 1220. 113 NLRB No. 25.