Ohio Valley Carpenters' District Council, Etc.

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, 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 com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] ' Ohio Valley Carpenters' District Council , United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Ramon C. Shull and McGraw Con- struction Co., Inc., Party to the Contract McGraw Construction Co., Inc. and Ramon C. Shull and Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Parties to the Contract Ohio Valley Carpenters' District Council , United Brotherhood -of Carpenters and Joiners of America, AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Thomas B. McQuain and McGraw Construction Co., Inc., Party to the Contract McGraw Construction Co., Inc. and Thomas B. McQuain and Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Parties to the Contract McGraw Construction Co., Inc. and James Macdonald and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Party to the Contract. Cases Nos. 9-CB-845, 9-CA-1923, 9-CB-846, 9-CA-1922, and 9-CA-2053. May 29, 1961 DECISION AND ORDER On July 25, 1960, Trial Examiner James T Rasbury issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in and were not engaging in any of the unfair labor practices alleged in the complaints, and recommending that the complaints be dismissed in their entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and James Macdonald, one of the Charging Parties, filed exceptions to the Intermediate Report and supporting briefs. The Respondent Unions filed an exception and both Respondents filed briefs in support of the Intermediate Report. 131 NLRB No. 111. OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 855 - 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 briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendation. - [The Board dismissed the complaints.] INTERMEDIATE REPORT AND RECOMMENDATION STATEMENT OF THE CASE' The original charges in Cases Nos. 9 -CB-845 and 9-CA-1923 were filed by Ramon C. Shull on August 5, 1959. On October 12, 1959; the Charging Party filed an amended charge in each case covering the same general alleged misconduct. The original charges in Cases Nos. 9-CB-846 and 9-CA- 1922 were filed by Thomas B. McQuain on August 5, 1959. An amended charge in each case was filed by the Charging Party covering the same general alleged misconduct by the Respondents on October 7, 1959. A consolidated complaint based on these four charges was issued by the Ninth Regional Office of the National Labor Relations Board on the 1st day of December 1959. The charge in Case No. 9-CA-2053 was filed by James Macdonald on February 8, 1960. The complaint in Case No. 9-CA-2053 was issued by the Ninth Regional Office of the National Labor Relations • Board on February 17, 1960. Thereafter these five above-named cases were consolidated for the purpose of hearing and trial pursuant to Board Rules and Regulations along with two other cases which the Trial Examiner severed from the instant proceeding at the hearing. (See footnote 1.) Pursuant to appropriate and legal notice the above -consolidated cases came before the Trial Examiner and were heard on March 17, 28, 29, 30 and 31, 1960, at Cincinnati, Ohio. The complaint issued by the General Counsel in Case No . 9-CA-2053 alleges that the Respondent McGraw Construction Co., Inc., hereinafter referred to as Respondent McGraw, had engaged 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, 61 Stat. 136, herein called the Act, and that at all times since on or about August 10 , 1959, the Respondent McGraw has maintained an exclusive hiring-hall arrangement and employment practice with Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, hereinafter referred to in these consolidated proceedings as Respondent Local , where- by the Respondent McGraw was and is required to hire only carpenter employees on its Armco job who are members of Respondent Local , and/or were referred or sponsored for such employment by Respondent Local. The complaint further alleges that since on or about August 10, 1959, pursuant to the aforementioned ex- clusive hiring-hall arrangement and employment practice the Respondent McGraw refused to ' employ James Macdonald , a qualified carpenter, at the Armco job because he was not a member of Respondent Local and was not referred or sponsored by it for employment. . The complaint covering the other four cases herein involved is similar, except that the Ohio Valley Carpenters District Council , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Respondent Council, as well as Re-' spondent Local, is made a party respondent. The alleged unlawful conduct pur- suant to the alleged unlawful exclusive hiring-hall arrangement and/or practice be- tween the Respondent McGraw and the Respondent Local and Respondent Council, is confined to the period between August 4 and 8, 1959 . Respondent McGraw is alleged to have engaged in unfair labor practices affecting commerce within the 1 Cases Nos 9-CB-601 and 9-CB-602 Involving the same Respondent labor organiza- tions but with different employers as parties to the contract and involving a different charging party were originally a part of this consolidated hearing and the caption on the record made at the first day of hearing includes these two cases The Trial Examiner granted a motion to sever Cases Nos 9-CB-601 and 9-CB-602 from the other cases herein and accordingly the latter two cases have been deleted from the caption A separate Intermediate Report covering Cases Nos 9-CB-601 and 9-CB-602 shall issue covering the matters therein 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, and Re- spondent Council and Respondent Local is alleged to have violated Section 8(b)(1)(A) and (2) of the Act affecting commerce as defined in Section 2(6) of the Act. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present arguments, and to file briefs. Motions of the Respondents to dismiss the complaint are finally disposed of in accordance with the following findings of fact and conclusions of law. Upon the entire record and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT MCGRAW Respondent McGraw is an Ohio corporation with its principal place of business in Middletown, Ohio, engaged in the building and construction business, including work performed by it in constructing additions to the steel mills of the Armco Corpo- ration, hereinafter called Armco, in Middletown, Ohio, the jobsite herein involved. During the past 12 months, which is a representative period, Armco has received in excess of $100,000 for its products which were sold, shipped, and delivered directly from its Middletown, Ohio, plants to persons, firms, and corporations located out- side the State of Ohio. During the same period Respondent McGraw sold goods, materials, and services to Armco valued in excess of $100,000. On these admitted facts I find that at all times material herein the Respondent McGraw has been engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATIONS INVOLVED The Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, are and have been at all material times herein labor organizations as defined in Section 2(5) of the Act. III. THE ISSUES INVOLVED The issues involved as framed by the pleadings and the evidence appear to the Trial Examiner to be threefold. First: Was there an exclusive hiring-hall contract between the Respondent McGraw and/or Respondent Local and Respondent Coun- cil which was illegal because of its failure to adhere to the nondiscriminatory safe- guards as prescribed by the Board in the Mountain Pacific case.2 Second: Was there an unlawful exclusive hiring-hall arrangement and/or practice whereby Respondent McGraw was required to hire only carpenter employees on its Armco job who were members of the Respondent Local or were referred or sponsored for such employ- ment by it or the Respondent Council. Third: Were the Charging Parties, Shull, McQuain, and Macdonald, or any one of them, actually discriminated against pur- suant to the alleged unlawful contract and/or arrangement and practice between the collective Respondents McGraw, Local Union, and the Council. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Armco Corporation operates a large steel mill located at Middletown, Ohio. Unlike the typical building and construction type case , this hearing presented a large building and construction contractor, the Respondent McGraw , that has for more 2 Mountain Pacific Chapter of the Associated General Contractors, Inc , et al., 119 NLRB 883, remanded to the Board 270 F 2d 425 (C.A. 9) (See also, 127 NLRB 1393 for the Board's new decision in said case following the remand, but wherein the Board clearly stated that In accepting the remand they were not agreeing with the circuit court's rejection of its holdings ) After full consideration of the problem, the Board held that exclusive hiring agreements inherently tend to encourage union membership in violation of the Act The Board concluded, however, that this illegal aspect of such agreements could be neutralized and such agreements rendered lawful if they explicitly set forth the following safeguards: (1) The selection of applicants for referral to jobs shall be based on objective criteria and shall specifically reject any aspect of union membership as a basis for selection; (2) the Employer retain the right to reject any applicant referred, and (3) copies of the referral procedure be posted by the parties in appropriate places at their respective offices. OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 857 than 20 years performed all maintenance work for Armco at its Middletown plant. During the past 20 years Respondent McGraw has maintained a constant workforce at the Armco plant. The size of the force may vary greatly depending on whether the work to be performed is of a routine maintenance nature or involves major con- struction and/or repair. The testimony indicated that normally the Respondent McGraw maintains a carpenter force of approximately 40 employees on the Armco job, but during the period of time covered by the charges filed herein, the Respondent McGraw was engaged in a major renovation on behalf of Armco and its carpenter force reached a maximum of approximately 185 at the peak employment in August of 1959. Due to the nature of the particular operation herein involved, Respondent McGraw maintains a small clerical staff and is provided office space on the plant site of Armco. The Respondent Council was organized in conformity with the constitution of the United Brotherhood of Carpenters and Joiners of America and is composed of 17 different locals affiliated with the United Brotherhood of Carpenters and Joiners of America that are located in the general vicinity of Cincinnati, Ohio, and such ad- joining counties as may have been determined in accordance with the International Union's constitution and bylaws to be within said Council's territorial jurisdiction. George Osterkamp is the elected secretary of the Respondent Council and is its general administrative head. He is elected by the members of the 17 local unions that comprise the Respondent Council membership. Respondent Local has its own office in Middletown, Ohio, and has been a member of the Respondent Council since July 1, 1958. The 17 member locals elect a specified number of the delegates based on each local's total membership and these elected delegates actually comprise the Respondent -Council and meet twice each month, the meeting dates regularly being the second sand last Friday of each month. The constitution, bylaws, and trade rules of the Respondent Council govern the conduct of the various union members who are members of the 17 locals affiliated with the Respondent Council. (See General Counsel's Exhibit No. 4.) 3 The Respondent Council has three business agents, Robert Sauer, Russell White, and Russell Austin, who generally negotiate contracts and handle the day-to-day business routine for the member locals. Respondent Local has its own business agent selected to perform these functions exclusively for Local 1477. This arrange- ment is not uniquely peculiar to Local 1477, because Local 1454 and Local 873 are members of the Respondent Council and each of these latter-named locals has its own business agent. The evidence indicates that white George Osterkamp is familiar with all those contracts negotiated by its business agents, he is not equally familiar with those labor-management contracts that may be negotiated by those Respondent Council member locals who have their own business agents. The Respondent Council generally issues referrals and/or work permits to all members of locals who are going to work within the territorial jurisdiction of the Respondent Council, but since July of 1959 referrals and work permits within the territorial jurisdiction of Respondent Local have been handled directly by the office of said Respondent Local. Work permits, as explained by Osterkamp, are a part of the dues structure of the labor organizations involved. "If a man decides to maintain his membership in his home locality and he desires to work in another area, then he must pay the dues in his own locality and he also pays that foreign dues [work permit] into the locality where he is working." (See General Counsel's Exhibit No. 7 for a sample of the type of work permit that has been issued by the Respondent Council.) A referral as used herein consisted of nothing more than a small piece of paper with a few blank lines on which would be written the name of the employer to whom the indi- vidual was being referred, the prospective employee's name, and a place for the signa- ture of the Respondent Council's secretary. (Respondent Unions' Exhibit No. 2.) B. The contract of Respondent McGraw Respondent McGraw operates under a one-page memorandum of agreement executed between the president of the McGraw Construction Company and the president of the United Brotherhood of Carpenters and Joiners of America, which instrument is dated August 18, 1958, wherein it agrees to "recognize the jurisdic- tional claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and observe the working conditions established or agreed upon by the United Brotherhood of Carpenters and Joiners of America and s While it appears to make little or no difference to the outcome of this case, it should be noted that according to the testimony of Respondent Local's business agent Percy Craft, it was not until December 7, 1959, that Local 1477's bylaws ceased to be operative (See General Counsel's Exhibit No 3.) 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the recognized bargaining agency of the locality in which any work of our com- pany is being done, with respect to journeyman carpenters employed by our com- pany." In said contract the United Brotherhood agrees to furnish competent journeymen on a nondiscriminatory basis with a right of acceptance or rejection reserved to the employer; the employer agrees to use the registration facilities in filling job vacancies; and the parties to the contract agree to post in places where notices to employees and applicants for employment are customarily posted all of the provisions relating to their hiring arrangement. (General Counsel's Exhibit No. 5.) 1 can find nothing in the language of this one-page agreement that commits the Respondent McGraw to be bound by the bylaws and trade and working rules of any union. There was no further evidence presented by the General Counsel indicating that the Respondent McGraw had any other written agreement with any other labor organization affiliated with the International Brotherhood of Carpenters and Joiners of America. There was testimony introduced by Respondent McGraw, however, indicating that they maintain in their office files a copy of the contract negotiated by Respondent Local with other contractors within their jurisdictional area and Respond- ent McGraw officials admitted being generally familiar with the contents of said contract and endeavored to adhere to the terms of said contract all of which would be in compliance with the provisions of its agreement with the International Brother- hood. There was presented and received in evidence as Respondent Unions Exhibit No. I a copy of the current contract generally applicable between all employers and locals of the International Brotherhood of Carpenters and Joiners of America cur- rently in effect and negotiated by the Respondent Council. There is nothing in this locally negotiated contract which binds employers to be bound by the bylaws and trade and working rules of either the Respondent Council or the Respondent Local. The General Counsel also introduced in evidence a copy of the current constitution, bylaws and trade rules of the Respondent Council. (General Counsel's Exhibit No. 4.) There was also introduced by the General Counsel a copy of the bylaws of Respondent Local. (See General Counsel's Exhibit No. 3. In connection with this exhibit see footnote 2, supra, as to the effective date.) Article 5 of the area contract sets forth a legal unions-shop provision but as emphasized above, nowhere in the agreement does an employer agree to be bound by the constitution, bylaws, and working rules of either the Respondent Council or the Respondent Local. The Trial Examiner has set forth all of the pertinent evidence appearing in the record concerning any contractual agreement between the Respondent McGraw and/or the Respondent Local and Respondent Council. The Trial Examiner has carefully studied the constitution, bylaws, and trade rules which were received in evidence of both the Respondent Council and Respondent Local and no useful pur- pose can be served by setting forth in detail the numerous provisions of said instru- ments which require that all jobs on which any of their members performed any work must be "strictly union in every detail." This is achieved by a simple provision set forth in the trade rules of the Respondent Council (see section 24, paragraph A of General Counsel's Exhibit No. 4) wherein no member of any affiliated local of the Respondent Council is permitted to work with any person "who is employed in any of the Branches or Subdivisions of the Carpentry Industry, unless such person is a member of the United Brotherhood of Carpenters and Joiners of America and in possession of the quarterly working card and buttons or bonafied [sic] permit, " The trade rules further provide that none but members of the United Brotherhood shall be employed as foremen and that no one except members of the United Brother- hood shall be permitted to give orders to any members on any jobs. (See section 25, paragraph A of General Counsel's Exhibit No. 4.) Strict penalties, including fines and expulsion from the Union, are provided for any officer or member of the Brother- hood who is guilty of improper conduct. (See section 12 of General Counsel's Exhibit No. 4). These few provisions taken from the Respondent Council's and Respondent Local's bylaws, constitution, and trade rules (and there are many others which might bet set forth that are equally stringent) create a situation which in the Trial Examiner's opinion prohibits anyone other than members of the United Brotherhood of Carpenters from working on carpentry construction jobs. There is not the slightest doubt in this Trial Examiner's mind, based on some small degree of acquaintanceship in the area of labor law and industrial practices of this country, as well as a simple reading of the applicable constitution, bylaws, and trade rules, that closed-shop conditions prevail insofar as carpenters are concerned within the territorial jurisdiction of the two respondent labor organizations herein involved. These conditions exist, however, solely because of the constitution, bylaws,- and trade rules of the respondent labor organizations and the conditions therein imposed on all members and not because of any contractual agreement between the collective OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 859 Respondents herein. The Board in its most recent pronouncement on the problem herein being considered and in a case remarkably similar to the instant case even to the extent of having one of the same charging parties, stated: "Absent any evi- dence that the Employers had agreed to be bound by the bylaws, trade, and working rules, it cannot be found that closed-shop arrangements existed solely by reason of such rules and bylaws." 4 Under the evidence of the instant case and in light of the Board's decision and disposition in the Miami Valley case, the Trial Examiner is left with no other alter- native than to recommend dismissal of that portion of the General Counsel's com- plaint which alleges an unlawful contractual arrangement between and among the collective Respondents herein. B. The alleged unlawful arrangement and/or practice between the .Respondents As indicated earlier herein the Respondent McGraw has for more than 20 years continuously performed maintenance work at the Armco jobsite. During this period of time it has had a close working relationship not only with Respondent Local insofar as carpenters are concerned, but with many of the other crafts operat- ing within that immediate vicinity. In addition to the National Agreement between Respondent McGraw and the United Brotherhood of Carpenters and Joiners setting forth the necessary hiring procedure safeguards as spelled out by the Board in the Mountain Pacific case, supra, there was also introduced evidence (see Respondent McGraw's Exhibit No. 2) and testimony to the effect that notices setting forth the hiring procedure were posted by the Respondent McGraw in the places where the hiring is usually done and other notices to employees are customarily posted. I find that the Respondent McGraw did comport with the Board's requirements as set forth in the Mountain Pacific case, supra.5 However, the testimony of the wit- nesses called by the Respondent McGraw denies adherence to any exclusive hiring- hall arrangement. Various witnesses for the Respondent McGraw testified that it is their usual practice to keep records on former employees and while they utilized the services of Respondent Local in recruiting employees for carpentry work, they frequently call employees directly and offer them employment. There is nothing in this record indicating an inconsistent line of testimony by any of Respondent McGraw's witnesses on either direct or cross-examination which might tend to dis- credit this particular testimony as to the Respondent McGraw's practice. As a * See Miami Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at., 127 NLRB 1073. One of the contractual agree- ments admitted in evidence in the Miami Valley case actually provided as follows : "members of the Miami Valley Carpenters District Council shall be given preference " To this Trial Examiner this sentence is clearly a commitment of preferential treatment tending to encourage union membership in violation of the Act, yet the Board, reversing the Trial Examiner , refused to find a violation and dismissed the entire complaint. The Miami Valley case appears to he a complete reversal of a long line of prior Board deci- sions. See for example McGraw Construction Co. Inc, 107 NLRB 1043 , and the cases cited at footnote 2, page 1049. See also , Endicott Church Furniture, Inc. et al, 125 NLRB 853 While in the Endicott case the Board is concerned primarily with a secondary boycott problem, it nevertheless discusses in great detail the coercive provisions of the "Carpenter Brotherhood's" constitution, bylaws, and trade rules at all levels and reasons a solid basis for an 8 (b) (1) (A) and (2) violation of the Act In McCormick Construction Company, 126 NLRB 1240, the Board likewise found closed-shop conditions stemming from the International Union's constitution to be violative of the Act 'There is some evidence in the record to the effect that the hiring procedure notices were not posted in the room where the Charging Parties herein applied for work. While the evidence on this point is inadequate to make an affirmative determination, nevertheless, even assuming this lack of posting in the particular room to be a fact, the Trial Examiner still would not find a violation because of such failure The proof shows that notices were posted where notices are customarily posted and wliere under normal circumstances employees report and prospective employees seek employment. The Trial Examiner is of the opinion that this Employer endeavored to comply with the intent of the posting require- ments as spelled out in the Mountain Pacific case, supra This note is not intended to indicate, however, that either an employer or union could in every instance satisfy the Board's requirements by having the notices posted in some unusual or obscure place, even if such place was claimed to be the place where such notices are customarily posted. Each determination must be based on a reasonable effort and intent by the party to satisfy the Board's objective of establishing a hiring arrangement that will be available and known to both union and nonunion applicants alike. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter of fact, the Trial Examiner is certain that due to the peculiar nature of this particular construction and maintenance project the Respondent McGraw fre- quently has occasion to contact its former employees directly and offer them em- ployment. While the Trial Examiner is not so naive as to presume that the Re- spondent McGraw has no knowledge as to the union affiliation of the particular in- dividuals who might be contacted directly, that is not the primary issue with which we are now confronted. The primary issue is whether or not the Respondent McGraw has an arrangement and/or practice whereby it utilizes the hiring hall of Local No. 1477 as its exclusive source of labor supply for carpenters. On the basis of the entire record and the testimony in this case I find that the Respondent McGraw did not have an exclusive hiring-hall arrangement and/or practice with either the Respondent Council or the Respondent Local Union. The Respondent Local Union and the Respondent Council freely admit that they have not posted notices which might endeavor to provide the safeguards of an ex- clusive hiring-hall arrangement as spelled out in the Mountain Pacific case, supra, but contend that they do not have an exclusive hiring-hall arrangement with the Respondent McGraw and that employees are free to obtain their own employment either through their own efforts or by utilizing the services provided by the Union if they so desire. Again the General Counsel offers no direct evidence to refute the testimony of either the Respondent Unions or the Respondent McGraw (which the Trial Examiner recognizes would be extremely difficult to obtain), but relies upon the constitution, trade rules, and bylaws of the Respondent Unions and the admitted testimony of Business Agent Craft who testified that he keeps a close watch on all carpentry construction work within his jurisdiction, to prove that the Re- spondent Unions must have had an exclusive hiring-hall arrangement and/or prac- tice with the Respondent McGraw. - This, however, is not sufficient to overcome the direct and undisputed testimony of the collective Respondents, particularly in light of the Board's pronouncements and findings in the Miami Valley case, supra. It might even be said that the admitted factual situation in the instant case, the hiring of Car- penters McQuain and Shull on August 8 by the Respondent McGraw, defeats any claim of an exclusive hiring-hall arrangement, because they were hired, however belatedly, without ever being referred by either of the Respondent Unions herein involved. Likewise the testimony of General Counsel's chief witnesses, the Charg- ing Parties, falls far short of the required preponderance of evidence insofar as what was done and said to them at the Respondent Local Union's office tends to establish an exclusive hiring arrangement. The Trial Examiner shall therefore recommend the dismissal of the complaint insofar as it alleges an unlawful, exclusive hiring-hall arrangement and/or practice on the part of any of the collective Re- spondents herein. D. The alleged discriminatory treatment of the Charging Parties McQuain, Shull, and Macdonald The charges herein filed by Shull and McQuain stem from events which transpired on August 4 and shall be summarized and considered separately from the individual charge filed by James Macdonald whose charge is based on events that transpired on August 10, 1959. Shull has been a member of the United Brotherhood of Carpenters and Joiners since May of 1941 and on August 4, 1959, was a member of Local 1807, Dayton, Ohio, which Local is affiliated with the Miami Valley Carpenters' District Council .6 McQuain has been a carpenter for approximately 35 years and has been a member in good standing of the Carpenter's Union since June of 1941. At the present time he is 'affiliated with Local 104 of Dayton, Ohio, a member of the Miami Valley Carpenters' District Council of Dayton. Both Shull and McQuain learned from one of their "carpenter brothers" that the Respondent McGraw was doing some hiring of carpenters and they proceeded together from Dayton to the office of Respondent Local in Middletown, Ohio, on August 4, 1959. They testified that there they talked to a man who identified himself as the business agent of Respondent Local No. 1477, but whose name they did not know.? Shull and McQuain both testified that after 9 There is evidence in the record indicating that Shull is no longer a member of Local 1807 because they refused to accept his dues. Shull's particular difficulties with Local 1807 were neither alleged as a violation of the Act nor litigated in this particular proceeding and the Trial Examiner has not considered Shull's internal union difficulties in arriving at any determinations in this case. 7 Percy Craft, the business agent of Respondent Local No. 1477, on August 4, 1959, testified that he had no recollection of either McQuain or Shull coming to see him at his OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 861 indicating to the "business agent" that they were carpenters and would like to be employed on the McGraw construction job at Armco, they were told that they (Re- spondent Local Union No. 1477) worked exclusively through the business agents. The "business agent" then wanted to know where the two men were from. After receiving an answer, he then said, according to McQuain, "we have some men com- ing from Dayton to work. Your names are not on this list." The Trial Examiner asked McQuain if anyone at the Union told him that they were doing any hiring at the McGraw construction job or that the Union had a request for carpenters. McQuain could not answer this question in the affirmative. Shull testified substan- tially as did McQuain concerning the conversation at the office of Respondent Local Union, but added that the "business agent" said, "Sorry, boys, I don't see your name on the list. However, if you had been here yesterday, there is a job for you." After receiving this information both Shull and McQuain promptly left the office of Local Union No. 1477 and proceeded to the Armco jobsite where Respondent McGraw was engaged in a major maintenance construction lob. According to the testimony of both Shull and McQuain, after finding their way into the employment office, all proceeded well in the course of their completing an application until McQuain was asked if he had a referral. According to Shull's testimony he was practically all ready to go to work when the question of a referral came up at which point the Respondent McGraw's hiring personnel then began to equivocate. Ac- cording to the testimony of both, however, they were invited to complete their applications and wait until someone of higher authority could be contacted to ascertain whether or not any carpenters were needed on either the second or third shifts. Both Shull and McQuain waited until someone that was described as a "field representative" came to the room and informed them that no further carpenters were needed. During the period of time in which they were waiting, both Shull and McQuain testified to other applicants seeking employment who were asked by the McGraw hiring authorities if they had referrals. Neither could testify to seeing any applicants hired during the time they awaited the final word as to whether or not any carpenters were needed. After receiving the information that no further car- penters were needed, both Shull and McQuain departed and did not again contact either their own respective local or the Respondent Local in an effort.to obtain employment. On August 5, Shull and McQuain filed their original charges against the Respondents McGraw, Local Union No. 1477, and the Council. On August 7, each received a telegram from the Respondent McGraw offering them employment and advising each of them to report to work at 11:30 p.m. on August 8, 1959, if they desired to accept the offer of employment. (See General Counsel's Exhibit No. 2.) Shull and McQuain reported for work on August 8, 1959, and according to their own testimony continued work until the carpentry work was substantially completed and then were laid off. There was no issue raised herein that either was laid off in a discriminatory manner within the meaning of the Act. Shull testified that promptly after being laid off he went home, got cleaned up, and returned to the Armco jobsite and applied for a job as millwright with the Respondent McGraw. Shull again testi- fied that he went through somewhat the same procedure by completing an applica- tion form and leaving it with the McGraw hiring authorities, but that he did not see any millwrights hired that day nor was he ever called for employment with the Respondent McGraw as a millwright. This particular incident was not alleged as unlawful. The General Counsel had subpenaed and introduced into the record data from the permanent records of the Respondent McGraw indicating that there were 18 carpenters hired on August 5; 15 carpenters hired on August 6; 29 carpenters hired on August 7; and 10 carpenters hired on August 8, 1959. (See General Counsel's Exhibit No. 8.) office on August 4, 1959. While McQuain generally described the man with whom he talked as being a large man of approximately Craft's size, he neglected to include a very obvious facial scar which Craft bears. While Shull gave the same general description of Craft, he did not include the facial scar until after he had mentioned the size of the man's foot and the type of shoe that he had been wearing. While such careful recollection of detail might in some instances indicate great powers of observation, from my observations and an analysis of Shull, the Trial Examiner is prone to believe that Shull's testimony was based on his observations of Craft at the hearing and not some 8 months prior Feeling as I do about this particular bit of "fabricated" information, the Trial Examiner is further of the opinion that Shull had propensities in the direction of manufacturing bits of evidence which best served his purposes Aside from this brief character analysis the Trial Examiner finds no necessity for making a definitive determination of whether the Charging Parties Shull and McQuain were actually talking to the business agent, Craft, or some other person for reasons that will be set forth hereinafter. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is on this basic set of facts that the General Counsel seeks to sustain his allega- tion of an 8(b) (1) (A) and (2) violation of the Act by the Respondent labor organ- izations and a violation of Section 8(a) (1) and (3) by the Respondent McGraw. This Trial Examiner is of the opinion that these facts do not. even establish a prima facie violation of the Act by any of the collective Respondents. Shull and, McQuain by their own testimony requested referral of the "business agent" of Re- spondent Local only to the McGraw job. In response to that request they were told that had they been there a day earlier they might have been referred, but that as it was their name was not on the list. This language does not indicate a discriminatory refusal to refer, but to this Trial Examiner merely indicates that these individuals had been at least 1 day late in seeking referrals to McGraw so far as the Respond- ent Local was concerned. There is no proof in this record tending to show that at the time Shull and McQuain applied to the Respondent Local for a referral to the McGraw Construction job Local No. 1477 had any requests pending for carpenters on the McGraw job. Furthermore, and consistent with other holdings herein, in the absence of an exclusive hiring-hall contract and/or arrangement or practice on the part of one of the Respondent Unions, this Trial Examiner knows of no Board holding or rule of law which would have required Respondent Local No. 1477 to have referred either one of these charging parties even if they had had a request for carpenters to work on the McGraw construction job. The Board has not attempted to regulate the manner of referral, except where there is an exclusive hiring-hall arrangement. Other than the wholly volunteered opinion and expressions by Shull that he was on the threshold of going to work until the question of a referral from the Union came up at which time the Company began to backtrack, there is not one iota of evidence that the Respondent McGraw discriminated in any manner in its course of conduct toward McQuain or Shull. The Trial Examiner does not believe or accept the volunteered evidence by Shull that he was on the threshold of going to work. This is primarily true because the undisputed evidence indicates that there were no carpenters hired on August 4, 1959. For the hiring authorities of Respondent McGraw to have asked either Shull or McQuain if they had a referral from the Union is to this Trial Examiner indicative of nothing. The Respondent McGraw freely admits that it frequently obtained a great many of its employees by requesting same of the various unions. Without asking the applicants whether or not they had a referral it would be impossible for the Respondent McGraw to know which em- ployees were being sent to it via the Unions and per their request and which appli- cants were applying on their own. If the proof showed that the Respondent McGraw had jobs available and would have hired either Shull or McQuain but for their failure to provide a referral by the Respondent Local or Respondent Council there would have been a violation. In the absence of such proof established by a pre- ponderance of the evidence this Trial Examiner is wholly unwilling to "suspicion" or "infer" a violation of the Act. As to the individual charges by McQuain and Shull the General Counsel argues in his brief as follows: Conner [the Respondent McGraw's project manager] testified that they some- times hire people on the day before they are put to work which, of course, is iminently [sic] reasonable in view of manpower scheduling problems on such a project and since McGraw hired 18 carpenters on August 5, 1959, the only reasonable and logical thing to have done in respect to the request of Shull and McQuain for employment would have been to hire them on August 4, 1959, and assign them to work on the following day assuming there was some reason for not putting them to work immediately. The General Counsel further argues that the charges were filed by Shull and McQuain in this case on August 5, 1959, received by the Respondent McGraw on August 6, and the offer of employment to Shull and McQuain was sent by telegram at 10:35 a.m. on August 7, 1959, and hence have great significance. As to the former argument, while it may very well have been "a reasonable and logical thing to have done" the mere fact that it was not done falls far short of the proof re- quired by a preponderance of the evidence in order to establish a violation of this Act. What in hindsight might be characterized as inefficiency cannot become a sub- stitute for proof. The most that can be concluded from the latter argument is that on some occasions it might be helpful in obtaining employment if unfair labor practices are filed with the Board. Such argument or reasoning fails to impress this Trial Examiner as providing any basis for concluding that the original refusal of employment-was discriminatory in violation of the Act. Based on this record, no one will ever know whether or not Shull and McQuain would. have been called for . OHIO VALLEY CARPENTERS' DISTRICT COUNCIL, ETC . 863 work even if they had not filed unfair labor practice charges, but by the same token the action of the Respondent McGraw in calling these two individuals for work within a reasonable period of time following their filing of an application for em- ployment is not indicative of discriminatory treatment when they personally applied for work on a day on which no one was hired in their particular skill. Based on the evidence presented and my observation of all witnesses , the Trial Examiner is of the opinion that Shull and McQuam were accorded fair and equitable treatment as might be expected by any other applicant and all in accordance with the law. They each applied at the office of McGraw and provided the prospective employer with certain basic information . This basic information was in the nature of their qualifications for the work sought and did not include any questions as to whether they were or were not members of any labor organization. Within a few days' time thereafter and without any further contact with either the labor organizations herein involved or the Employer McGraw they were offered employ- ment and each accepted and thereafter worked until the job was substantially completed. The Trial Examiner shall recommend the dismissal of the complaint insofar as it alleges an unfair labor practice by the Respondent McGraw in refusing to employ the Charging Parties, Shull and McQuain , and by the Respondent Local and Respondent Council in refusing to refer the Charging Parties, Shull and McQuain, to the McGraw construction job for employment. We turn now to a consideration of the charge filed by James Macdonald, which charge and complaint alleges only an 8 (a ) ( 1) and ( 3) violation of the Act on the part of the Respondent McGraw. Macdonald has been a carpenter for approxi- mately 30 years and a member of Local 104 in Dayton, Ohio, since October of 1945. Macdonald had learned from Shull that the Respondent McGraw was running three shifts a day on which carpenters were employed and that possibly he could obtain employment . On that basis Macdonald proceeded to the employ- ment office on the late afternoon of either August 10 or 11, 1959, and sought employment.8 Macdonald impressed the Trial Examiner as being an honest, intelligent, courageous, and candid witness whose testimony should be and is fully credited. However, accepting his version of the facts as being accurate, they still fail to establish a prima facie case of an exclusive hiring-hall arrangement and/or practice between the collective Respondents herein or any individual discrimination toward him tending to encourage or discourage union membership that would be a violation within the meaning of the Act. Briefly summarized , Macdonald testified as follows. About 3:30 in the afternoon of either August 10 or 11, 1959, he applied for employment at the McGraw construction site at a place which he believed to be the employment office. It should be noted, however, that the place described by Macdonald was, a different location from that which had earlier been described by Shull and McQuain when they sought employment with the Respondent McGraw. Macdonald stood in line with several other prospective employees , some of whom he knew to be carpenters from conversation with them while awaiting the opening of the office , and there he heard the company representative ask several of the men in line for their referrals . The individual signing up of the employees on behalf of the Respondent McGraw was later identified in the record as being Mr. Mehl, a timekeeper. Macdonald testified that Mehl asked him one or two preliminary questions and then asked him if he had a referral . Upon receiving a negative answer, Mehl then replied , "Well I am only signing up the men with referrals here." After some further exchange in which Macdonald sought to ascertain whom he should see in order to obtain employment , he was told by Mehl that the car- penter's steward would be coming over in a few minutes to pick up the men that were being signed up and he could talk to him if he cared to. Macdonald sought information from the steward concerning employment but,was told by the steward that he did not do the hiring and that he (Macdonald ). should see the man over there, indicating Mehl. Macdonald then had further conversation with Mehl in which he sought to ascertain exactly who was in charge of the hiring but was unsuccessful. Macdonald. was, however, given an application blank and told that he.might complete the application as a preliminary step in seeking employment. The employment 8 The witness testified as follows : "It was about August 10 or 11 , I believe on the 11th, I am not certain I could be 1 day off." The exact date on which employment was sought could have some significance in this case , but it is from this rather vague and indefinite testimony by Macdonald from which a determination must be made. Macdonald's further testimony tended to fix the day on which he applied for work as being on a Tuesday August 11 is on a Tuesday General Counsel 's Exhibit No 8 indicates that there were several carpenters hired for employment on August 10, but fails to indicate that there were any carpenters hired on August 11, 1959. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application was partially completed by Macdonald and returned to Mehl . There was further conversation between Mehl and Macdonald after the application was returned and Macdonald testified that he said : "And I told him that I had another contact that I was going to make that night in regard to a job, that I couldn't tell him any- thing definite then because I didn't feel that there was any definite prospect of going to work for McGraw right then. And he [Mehl] told me he would put it in chan- nels and that I would be notified." Thereafter Macdonald departed from the McGraw construction site and went to the office of Respondent Local where he desired to talk to the business agent, but after waiting some 20 or 25 minutes during which time the business agent was busy with a number of telephone calls, Mac- donald departed. Accepting as I do Macdonald's version of his efforts to obtain employment with McGraw, it fails completely to establish an exclusive hiring-hall arrangement and/or practice between the Respondent McGraw and the Respondent labor organizations. His testimony only proves that on the day he sought employ- ment the Company put to work a number of employees who had referrals from the Union. He was neither told that he would be employed if he obtained a referral nor refused employment because he did not have a referral. He was simply told that the only thing being done on that day was signing up those people who had referrals. Being a union member in good standing , it is entirely possible that had Macdonald sought referral from Respondent Local he might have obtained one and conceivably obtained employment with the Respondent at the time he applied. The fact that Macdonald was provided with an application, given an opportunity to complete same, and return it to the Respondent McGraw tends to corroborate the evidence presented by the Respondent McGraw throughout this entire case to the effect that it obtained employees not only through the Unions but also from those people who apply directly to the Company and from its own company records on former employees. Consistent with the foregoing the Trial Examiner shall recommend dismissal of the complaint issued in Case No. 9-CA-2053 in its entirety. Upon the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent McGraw is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Council and the Respondent Local are labor organizations within the meaning of Section 2(5) of the Act. 3. Neither the Respondent McGraw nor the Respondent Council and/or Re- spondent Local has engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] Republic Steel Corporation , Warren District, Niles Plant and United Steelworkers of America, AFL-CIO, Petitioner. Case No. 8-RC-4036. May 29, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTION On February 9, 1961, the Board issued a Decision and Direction of Election in the above-entitled proceeding,' in which it directed an election in a voting group of plant clerical employees at the Employ- er's Niles, Ohio, plant. This decision provided that if a majority of the plant clerical employees voted for the Petitioner, they should be deemed to constitute a part of the existing production and mainte- nance unit represented by the Petitioner, but that if a majority of said employees voted against the Petitioner, they should be taken to have 1 Not published in NLRB volumes. 131 NLRB No. 107.