Carpenters Local Union 224, Etc.

CARPENTERS LOCAL UNION' 224, ETC. 295 amount of $500,000 was derived entirely from its-intrastate guests, or from its barber shop, or other intrastate facilities, is left to one's imagination . can it rightly and legally be concluded that because an employer does $500,000 of business that such business i_sW'in" or "affects" intrastate commerce. We think not. . . . On December 2, 1959, the Board issued an order remanding the record for further hearing for the purpose of adducing evidence to establish legal jurisdiction of the Board. By notice, dated January 29, 1960, the Regional Director of the Board in New Orleans scheduled the remanded hearing for February 10, 1960. The parties received the notice of hearing on February 1, 1960. On the same date, January 29, the Regional Office of the Board issued a subpoena duces lecum to Respondent for the production of certain commerce information. The Regional Director on Febru- ary 4, 1960, rescheduled the hearing from February 10 to February 23. The parties received notice of this postponement on February 5, 1960. The Regional Director informed Respondent that the postponement was for the purpose of affording Respondent more time to comply with the above-mentioned subpena. By telegram, dated February 23, the hearing was postponed to February 29. The hearing resumed and was concluded on February 29, 1960. At that hearing the Employer stipulated that the hotel in the last 12 months purchased supplies and materials valued in excess of $10,000 either directly or indirectly from outside Louisiana. The petitioner stated at the hearing: I would like to call attention to the Board that the'petition filed . was filed April 22, 1959 and we think that we ought to have some action immediately about having a secret ballot election for these people. Board Decision and Direction of Election issued May 6, 1960. The election was held May 25, 1960. 'Carpenters Local Union #224, United Brotherhood of.Carpenters and Joiners of America, AFL-CIO [Peter Kiewit Sons Co.] and Gene L. Falls Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Car- penters Local Union #224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Gene L. Falls and Peter Kiewit Sons Co., Party to the Contract Raymond International, Inc. and Gene L. Falls Local Union No. 224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Gene L. Falls. Cases Nos. 9-CB-501, 9-CB-621, 9-CA-1523, and 9-CB-515. July 20, 1961 DECISION AND ORDER . On July 25, 1960, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in- and were not engaging in any unfair labor practices and recommending that the complaints herein be dis- missed, ..as-set forth in the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondents i filed excep- tions to the Intermediate Report and briefs in support thereof. 'The Respondent Unions also filed a request for oral argument and a motion that the cases be severed and new, separate hearings be ordered on remand . The request for oral 132 NLRB No. 21. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Exam- iner to the extent they are consistent with our decision herein. 1. The complaint in Kiewit alleges principally an illegal oral exclusive hiring arrangement between Kiewit and the Respondent Unions, whereby Kiewit hired exclusively through the Respondents only employees who were cleared or sponsored by them. The Trial Examiner found no basis in the record to support this allegation,' because in his view the record did clearly establish that Kiewit was free to hire where it chose. He did find, however, that everyone. hired had to be either a member in good standing of one of the Re- spondent Council's constituent locals, or have a permit or referral from the Council to retain his job. He found this agreement and its- actual enforcement violative of the Act, but for other reasons he ultimately found no violations 4 The Trial Examiner based his finding that there was illegal agree- ment on the following : 1. An alleged admission by Kitchen, Kiewit's project superin- tendent, that when the union could not furnish men he could hire wherever he could find suitable help. 2. The Taylor incident. 3. The conduct of Beckett, the job steward, and Sauer, 'a District Council business agent, at the jobsite, and of Osterkamp, secretary of the Council, at his office. We do not agree with the Trial Examiner that these factors lead to the conclusion he drew from them. On the contrary, the Trial Examiner's inferences are not at all impelled by the record, which, in argument is denied because the record , including the exceptions and briefs , in our opinion adequately presents the issues and the positions of the parties . We deny the motion to. remand in view of our dismissal of the cases hereinafter. 'We note and correct the following minor inadvertencies : ( 1) The Trial Examiner omitted Local 2578 from his listing of those Locals constituting the District Council who. had their own business agents and negotiated their own contracts ; ( 2) at one point the Trial Examiner refers to the Gibson Hotel meeting as occurring May 1 , 1958. The correct date, as he elsewhere noted , is May 15, 1958. 8 The Respondents contend that he should therefore have dismissed this allegation of the complaint. However, the General Counsel, at the hearing, in stating what he intended to prove, described a slightly different agreement , which corresponds more closely to what the Trial Examiner found We therefore find the Trial Examiner's ruling correct But in any event the Respondents have not been prejudiced because, as we find below, the General Counsel did not prove any illegal arrangement. ' In this connection , the Board does not adopt the Trial Examiner's reasoning that Section 10(b) bars any findings' against the Respondent Council, or that the Respondent Local, as an entity, had not committed any unfair labor practices .' In the view we take- of the case it is not necessary to reach these questions. CARPENTERS LOCAL UNION 224, ETC. 297 our opinion; does not establish any illegal agreement. Our reasons are these : - We'do not, in the first instance, agree that the testimony of Kitchen, the project superintendent, considered fairly, in its entirety, and to- gether with the other testimony in the record as to what agreement there was, contains the admission the Trial Examiner extracted from it. Kitchen was one of those who testified as to the negotiations be- tween Kiewit and the Unions with respect to the conditions of em- ployment at the job. The testimony of all these individuals was-in agreement that there was no requirement that Kiewit hire through the Union, and the Trial Examiner credited them in this respect. Further testimony was that there was no requirement that those hired be union members or have work permits, and there is no testimony in the record that any individual was ever asked for a permit, clear- ance, or referral from the District Council. And although it would appear that most of those on the project were members of unions associated with the District Council, it is uncontradicted on the record that 'there were also employees who were not members of the Union when hired who did not at any time become members. In this state of the record, therefore, we cannot give to Kitchen's alleged admis- sion- any of the significance attributed to it by the Trial Examiner. Nor can we agree that any of the other incidents relied on by the Trial Examiner impel his result. The Taylor incident involves a walkout of a piledriver crew, and the firing of Taylor who had just been hired and had apparently been turned down by the Union's examining board. The Trial Examiner credited Taylor's testimony that Cole, a Kiewit foreman, told him he was laid off on orders from Omaha (Kiewit's home office). As- suming that this was in fact the case, we fail to see how it establishes the agreement the Trial Examiner found. On the contrary, it would seem fairly clear that had there been such an agreement it would not have been necessary for the Union to strike to remove from the job someone obnoxious to it .6 Similarly, we do not think that the facts that there was a union steward, who did check whether the men were members, that the union business agent visited the project, and that the Union -did in fact refer men to the job, are probative of any illegal arrangement. It was conceded by all parties that the Union was one source of sup- ply of piledrivers for the project. And while the internal rules and regulations of the Unions may exceed, in their requirements of mem- bers, what is permitted by the Act, it has not been established here 5 we express no opinion on the propriety of the Trial Examiner 's determining credibility in this phase of the case by considering what may have happened at another job involving another employer. - 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Company had agreed to be bound by such rules .6 Moreover, there is no evidence in the record that the Company required or sought union approval or clearance of anyone it hired. In these circum- stances we find that the General Counsel has failed to establish any illegal agreement between Kiewit and the Respondents. 2. With respect to the refusal to rehire Falls, the Charging Party, the General Counsel conceded in pretrial pleadings that he was seek- ing to hold only the Respondent Local and not the District Council. The Trial Examiner dismissed this allegation ultimately because al- though he was of the opinion that Falls had in fact been discrim- inated against, he did not think the Local, as an entity, was respon- sible therefor. Rather, he found that the District Council had brought this about, pursuant to the agreement he had found. We agree with the Trial Examiner's ultimate dismissal but we do not adopt' his reasoning. We have found, contrary to the Trial Ex- aminer, that there was no illegal arrangement between Kiewit and the Respondents. We further agree with the Trial Examiner that Falls had in fact been replaced for nondiscriminatory reasons when he reapplied for work after his detention in jail and after the project had reopened. In these circumstances, discrimination is not established by show- ing that some men may have been hired in a category Falls might have filled, or by reliance on a general shortage of piledrivers. Ac- cordingly, we find that there was no discrimination in the refusal to rehire Falls, and, as did the Trial Examiner, we shall dismiss the complaint in this case in its entirety. 3. We also agree with the Trial Examiner's dismissal of the com- plaint in Raymond. Without the testimony of Wherley the General Counsel has not established any violation by either Respondent here. And since, in the circumstances of this case, Wherley could not be adequately cross-examined by the Respondents, we, like the Trial Examiner, will not use his testimony. [The Board dismissed the•complaints.] 6 Compare Miami Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Bowling Supply and Service, Inc., et al. ), 127 NLRB 1073; McGraw Construction Co, Inc, 131 NLRB 854. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon the-'charges and amended-,charges, filed by, Gene--L. Falls, an individual, herein referred to as the Charging party and Falls, the General` Counsel' of-the-Na- tional Labor Relations Board, herein respectively referred to as the General Counsel 1 and the Board, by the Regional Director for the Ninth Region (Cincinnati , Ohio), issued a complaint and order consolidating cases dated April 14, 1959, alleging there- 1 This term specifically includes counsel for the General Counsel appearing at the hear- ing herein. CARPENTERS LOCAL UNION 224, ETC. 299 in that Carpenters Local Union #224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Ohio Valley Carpenters ' District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Carpenters Local Union #224, United Brotherhood of Carpenters and Joiners of America , AFL-CIO; and Peter Kiewit Sons Co., herein after referred to respectively as Local 224, the District Council, and Kiewit, had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Thereafter the Respondent Unions by their counsel , on May 15, 1959, filed motions to dismiss the complaint, to make more definite and certain, to separate the cases, and to strike certain. allegations therein . In due course the respective Unions filed their answers , in which they admitted, inter alia, that they were labor organizations within the meaning of Section 2 (5) of the Act,2 but denied the commission of any of the alleged unfair labor practices .3 On June 22, 1959 , the Respondent Unions by their counsel filed amended answers in which they again denied the commission of any of the alleged unfair labor prac- tices, but a new defense was alleged in the amended answer of Local 224 , in which it denied that it was a labor organization within the meaning of the Act. On June 5, 1959, John C. Getreu, Regional , Director, Ninth Region, issued an order referring motions to Trial Examiner . Thereafter on June 9, 1959, Trial Examiner Thomas S. Wilson issued an order denying all of said motions. We now come to the case involving Raymond International , Inc., and Local Union No. 224, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, Cases Nos. 9-CA-1523 and 9-CB-515. Upon charges and amended charges filed by Falls on September 22, 1958, and February 24, 1959 , respectively, the Regional Director for the Ninth Region issued a complaint, order consolidating cases, and notice of hearing, dated May 26, 1959, alleging therein that Local, 224, hereinafter referred to as Respondent Union and/or Local 224, and Raymond International , Inc., herein referred to as the Respondent Raymond and/or Raymond , had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a)(1) and (3) and 8(b)(1)(A ) and (2 ), and Section 2(6) and (7) of the Act. Thereafter the Respondent Local 224 by its counsel filed its answer to the com- plaint on June 22, 1959, in which it admitted certain allegations in the complaint, but denied that it was a labor organization within the meaning of the Act , and that either Robert Sauer, business agent for the District Council , or George Osterkamp, secretary of said District Council , are, or have been at any time material hereto, agents of the Respondent Local 224. On or about June 22, 1959 , the Respondent Raymond filed its answer in which it admitted certain jurisdictional matters, but denied that it had engaged in any of the alleged unfair labor practices. Thereafter, on June 9, 1959, the Regional Director for the Ninth Region issued an order consolidating Cases Nos. 9-CB-501 , 9-CB-621, 9-CA-1523 , and 9-CB-515. Due to the complexity of the issues set forth in the complaints and the Respond- ents' answers and amendments thereto , the Trial Examiner has refrained from setting forth in detail in this section of the report the pertinent allegations therein because he feels that it would be better for all concerned to set them forth below under appropriate subsections , each of which will be devoted to either a particular case or to a particular allegation, and the Respondents' positions thereto as set forth ,in their answers and amendments thereto.4 Pursuant to due notice, a hearing was held on June 30 and July 1 , 1959, and from August 25 to September 18, 1959, at Cincinnati, Ohio, before James A. Shaw, the duly designated Trial Examiner . The General Counsel, the Respondents, and the Charging Party were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, to introduce pertinent evidence , to argue orally at the conclusion of the taking of the evidence , and to file briefs was afforded all parties. Counsel for the Respondent Unions (on December 1, 1959 ), for the Re- spondent Raymond (on December 1, 1959), and counsel for the General Counsel (on November 30, 1959 ), filed well-drafted and comprehensive briefs on the issues herein . They have been carefully considered by the Trial Examiner. 2 The significance of this statement will be apparent below. 8 See infra, for a more detailed discussion of the pleadings herein. 4 For example the General Counsel 's original exhibits ( usually referred to as the "formal papers" ) are 53 in number, and are marked as "Exhibits Nos. 1A to 1AAA." 300 DECISIQNS OF NATIONAL LABOR RELATIONS BOARD During the course of the hearing, at, the- close of the General Counsel' s case-in- chief, and at the completion of the taking of testimony, numerous motions to dismiss the complaint were made by counsel for the Respondents; ruling thereon was re- served by the Trial Examiner. They are now granted in part and, denied in part as will be shown below in appropriate sections of this report. On December 29, 1959, counsel for the Respondent Unions filed with the Trial Examiner a motion to correct record. Thereafter on January 29, 1960, the, General Counsel filed General Counsel's suggestions in respect to Respondents' motion to correct record. On February' 3, 1960, counsel for the Respondent Unions filed with the Trial Examiner Respondents' remarks with reference to General Counsel's sug- gestions in respect to Respondents' motion to correct record. The Trial Examiner after due diligence hereby grants said motion and suggestions to correct the record herein. 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 - BUSINESS OF THE EMPLOYERS A. Peter Kiewit Sons Co. The complaint alleges, but the answers and amended answers of the Respondent Unions' deny; that Kiewit is engaged in commerce within the meaning of the Act. Upon the record as a whole the Trial Examiner finds that Kiewit is a Nebraska corporation engaged in business as a general contractor in the building construction industry. The record shows that during the calendar year 1958 it was engaged in construction work in Greenland, British Columbia, and in the construction of a dam near New Richmond, Ohio,5 on the Ohio River under the supervision of the United States Army Engineers, for which it received in excess of $100,000 for its services. In the circumstances the Trial Examiner finds that at all times material herein Kiewit has been engaged in commerce and in operations affecting commerce as de- fined in Section 2(6) and (7) of the Act. B. Raymond International, Inc. The complaint alleges but the answer denies that Raymond International, Inc., is ,engaged in commerce within the meaning of the Act. Upon the record as a whole the Trial Examiner finds that: Raymond is a New Jersey corporation and is engaged in the building and construction business through- out the several States and has been so engaged for almost a half century; 6 during the last 12 months it has received in excess of $50,000 for services performed by it on projects outside the State of New Jersey; and it is now, and has been at all times material herein, engaged in commerce and/or operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As indicated above, the complaint alleges in Case No. 9-CB-621 and the answer admits that the District Council is a labor organization within the meaning of Sec- tion 2(5) of the Act. In the circumstances and upon the record as a whole the Trial Examiner finds that Ohio Valley Carpenters' District Council, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. We now come to the status of Carpenters Local Union #224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as indicated above. Local #224 in its original answer (in Case No. 9-CB-501) filed on May 15, 1959, admitted that it was a labor organization within the meaning of the Act. Thereafter, on June 2, 1959, or 1 week later, it filed an amended answer in which it denied it was such an organization within the meaning of the Act. At the hearing herein, George Osterkamp, secretary of the District Council, testified that Local 224 and other locals that constitute the Council were in com- pliance with Section 9(f), (g), and (h) of the Act, which clearly indicates to the Trial Examiner when considered in the light.of Local 224's admission in its original Actually the dam was located in the State of Kentucky See infra The record shows that one of the prize exhibits at the International's offices in Indianapolis, Indiana, is the original contract between it.and Raymond dated may 19, 1919 CARPENTERS LOCAL UNION 224, ETC. 301 answer in Case No. 9=CB-501, that it is a labor organization within the meaning of,the Act. However, in view of the position of counsel for the Respondent Unions, and in particular his vigorous objection to the theory of the General Counsel in this regard as vociferously expressed at the hearing herein and his treatment of the issue in his brief, the Trial Examiner feels compelled to dwell at some length on the question in this section of the report., As indicated above the Respondent Unions admit, that the District Council is a labor organization within the meaning of the Act. As the Trial Examiner sees it the controlling question herein in regard to this issue is, what is the District Council? The record clearly shows that the District Council is a "creature" of the con- stitution and laws of the United Brotherhood of Carpenters and Joiners of Amer- ica.7, Upon referring to section 26 of the constitution and bylaws we find the following: JURISDICTION OF DISTRICT COUNCILS • SECTION 26. Where there are two or more Local Unions located in one city they must be represented in a Carpenters' District Council composed exclu- sively of delegates from Local Unions of the United Brotherhood, and they shall be governed by such Laws and Trade Rules as shall be adopted by the District Council and approved by the Local Unions and the First General Vice- President. The General President shall have power to order such Local Unions to affiliate with such District Council, and to settle the lines of juris- diction of such District Council, subject to appeal. District Councils may be formed in localities other than in cities where two or more Local Unions in adjoining territory request it, or when,in the opinion of the General President the good of the United Brotherhood requires it. The District Council so formed shall be governed by the same General Laws gov- erning District Councils in cities. District Councils shall have the power to make By-Laws, Working and• Trade Rules for the government of the Local Unions and the members of the,United Brotherhood working in their districts. Also, Laws, governing strike and other donations except sick donations, which shall in no way conflict with the Con- stitution and Laws of the United Brotherhood, and must be adopted by a refer- endum vote of, the members of the Local Unions affiliated with the District Council and approved by the First General Vice-President before becoming law, and their representation shall be according to membership. The jurisdiction of the District Council shall be as provided for by the Constitution and Laws of the United Brotherhood and named in their charter. District Councils shall have the power to hold trial for all violations by members or Local Unions and impose such penalties as they may deem the case requires, subject to the right of appeal under Section 57. The decision of the General Executive Board on violations of Trade Rules is final. District Councils can- not debar their members from working for contractors or employers other than those connected with the Employers' or Builders' Association, nor shall they affiliate with any central organization whose Constitution or By-Laws conflict with those of the United Brotherhood. Local Unions other than those working on building material shall not have a voice, vote or delegate in any District Council of the building tradesmen, but may establish District Councils' of their own under By-Laws approved by the First General Vice-President. Examining Boards may be established by District Councils or Local Unions where no District Council exists. They shall examine candidates as to their qualifications for membership in the United Brotherhood and must report their findings on all applicants in writing. The examinations shall consist of a practical test in the branch of trade in which the applicant desires employment. The record shows that 17 locals in the Cincinnati,, Ohio, area constitute the 'Ohio Valley Carpenters District Council. Geographically the District Council has jurisdiction over six counties in Kentucky, and extends northward at least 32 miles from Cincinnati to Middlet6wn, Ohio.8 The Council is composed of "delegates 7 See' General Counsel's Exhibit No 6. 8 Section 3 of the constitution and bylaws of the, District Council provides : " Juris- diction shall reach from Headquarters in Cincinnati, Ohio, in all directions to the next jurisdiction which includes Hamilton, Clermont [not Clearmont as shown in the record], and Brown counties in Ohio ; Kenton, Campbell, Boone, Bracken, Grant, and Pendelton in Kentucky " _ 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from each of the 17 locals two (2 ) for each local for a membership of 100 or less, and one ( 1) additional delegate for each additional ( 100) of membership or, major fraction thereof." 9 The officers of the District Council are as follows: Section 9 Officers and Committees PAR. A-The officers of this District Council, shall be: President, Vice Presi- dent, Recording Secretary, Financial Secretary, three (3) District Business Agents, Treasurer, Reading Clerk, Conductor, Warden,, and three (3) Trustees. [Emphasis supplied. ] 10 These officers are elected by the delegates of the 17 locals. The constitution and bylaws of the District Council provides in section 9, par. D, that "none but regularly elected Delegates to the District Council shall be eligible to hold office in this Dis- trict Council, or be a Delegate to an Allied Body, except the Business Agents or the Recording Secretary." [Emphasis supplied.] We now come to the section of the recording secretary and the business agents of the District Council. To the Trial Examiner this is one of the most important aspects of the issues herein in regard to the Respondent Unions. The election pro- cedure of the business agents and the recording secretary are set forth in section 8 (page 9), of the constitution and bylaws of the District Council.ll The recording secretary is selected by the membership of the 17 locals that constitute the District Council. The business agents of the District Council are selected by the member- ship of the 13 locals which do not have their own business agents. The constitution and bylaws of the District Council further provides, inter alia, in this regard, that section 4, par. 4, "District Recording Secretary and all District Business Agents shall cease to be delegates from their Local Union when elected as District Officers"; section 8, par. B, provides that "No Local Union number will be placed on the ballot." [emphasis supplied]; par. D, "The balloting for Business Agents, and Recording Secretary shall be done by all the Local Unions simultaneously through- out the District on the Thursday following the 3d Wednesday in June"; and par. E, "The Recording Secretary and two (2) Business Agents shall be members of Local Unions in Ohio, and one ( 1) Business Agent shall be a member of a local union in Kentucky." [Emphasis supplied.]' The record shows, and the Trial Examiner finds, that at all times material herein, George Osterkamp was the recording secretary, and that George Sauer and Russell White are the business agents servicing the Ohio side of the Ohio River, and Russell Austin is the business agent servicing the six counties in Kentucky that are included in the jurisdiction of the District Council. Sauer's territory in the District Council's jurisdictional area is from Vine Street, East, and White's from Vine Street, West, Cincinnati, Ohio. The 17 locals making up the Ohio Valley District Council are Locals 2,12 29, 224, 415, 698, 703, 712, 739, 785, 854, 868, 873, 1206, 1602, 1454, 1477, and 2578. Four of these locals have their own business agents, negotiate their own collective- bargaining agreements, and admittedly are labor organizations within the meaning of the Act. The four locals referred to are as follows: Local 1454, which is re- ferred to herein as the "Millwright" local, and whose membership is confined solely to those engaged in millwright work; Local 873 is limited to workers engaged in the work of "laying carpets, linoleum, resilient floor layers"; Local 1477, located at Middletown, Ohio, 32 miles north of the District Council's office on Vine Street, Cincinnati, Ohio; and Local 1477, which is referred to herein as the "Home Build- ers Local" and the "catchall Local." Its membership consists of carpenters en- gaged in housebuilding, employees engaged in millwork and in production work in various plants in the Cincinnati area. They are not skilled or journeymen workers. No examination as to their skills in carpentry is requisite for their membership in the Local, as is required in all of the other Locals. Moreover its members do not perform construction work with which we are primarily concerned herein. The record clearly shows that the membership of the Locals that constitute the District Council are subject to the constitution and bylaws of the International Union, the District Council, and the rules and regulations of their local unions, which 9 See General Counsel's Exhibit No. 5, section 4, par. B. 10 See General Counsel's Exhibit No. 5. It See General Counsel's Exhibit No. 5. 12 Historically, the oldest local in the Carpenters Union, its charter having been granted back in the 1880's. CARPENTERS LOCAL UNION 224, ETC. 303 obviously must conform in the final analysis to the International, the parent body. This brings us to the pertinent question herein, For what purpose were the Locals chartered? Why do they exist? Why did they comply with Section 9(f), (g), and (h) of the Act? And finally, Is Local 224 a labor organization within the meaning of Section 2(5) of the Act? After long and careful consideration of the arguments advanced by counsel for the Respondent Unions on the record at the hearing herein, and particularly in his brief, the Trial Examiner is convinced and finds that Local 224 is a labor organiza- tion within the meaning of Section 2(5) of the Act. His reasoning in this regard is predicated on the following: (1) It was created and chartered in the first instance for the purpose of dealing with employers on behalf of those engaged in the skills peculiar to the carpenter trade on behalf of employees, concerning wages, hours, and other conditions of employment; (2) the District Council is composed of dele- gates from Local 224, and other locals that constitute the Ohio Valley District Council, which admittedly is a labor organization, hence absent Local 224 and its sister locals there would be no District Council; (3) and finally it operates as a labor organization through its delegates to the District Council which admittedly does the "leg work" for Local 224, and its sister locals," . so that employees in each member union participate in council affairs through their representatives or council's executive board." Dinkier-St. Charles Hotel, Inc., 124 NLRB 1302. III. THE ALLEGED UNFAIR LABOR PRACTICES As indicated above the Trial Examiner is convinced that the only sensible way to dispose of the issues herein is to separate the cases. By that he has reference to the fact that the combined cases deal with two different employers neither of whom had a single interest in common, at times material herein, except that they were both engaged in the construction business, and by necessity compelled to deal with the Respondent Unions, particularly in regard to the employment of pile- drivers. For this reason the Trial Examiner will first dispose of the Kiewit project and then the Raymond job. In other words by the combination of the cases the Trial Examiner was and is, literally and figuratively speaking, placed on the "horns of a dilemma," or as counsel for the Respondent Unions so aptly put it in his brief, "Because of the situation created by the consolidation of the cases, it will be neces- sary [prior to touching upon argument], to separate cases, define the parties in each case, and determine precisely what allegations apply to what parties in what case." 13 The Kiewit Job As the Trial Examiner sees it no one could possibly understand the issues herein without reference being made to the nature of the job that Kiewit had contracted to perform for the United States Army Engineers on the Ohio River, near New Richmond, Ohio. The record shows that Kiewit was awarded a contract to con- struct a "cofferdam" in the Ohio River, at Shiloh,14 near New Richmond, Ohio, on or about May 9, 1958. The building of the dam was widely publicized in the papers, in particular those catering to the building trades, for some time before the contracts were awarded by the United States Army Engineers. Kiewit was awarded its contract to build the cofferdam on or about May 9, 1958. The record shows that even before Kiewit came into the picture members of the Unions visited the damsite. This is understandable because the Shiloh dam was but one of a series of similar projects then under construction on the Ohio River from Pittsburgh, Pennsylvania, to Cairo , Illinois, all of which were part and parcel of a well-considered plan of the United States Army Engineers to control the waters 18 To be sure the Trial Examiner denied the motions to separate the cases filed by counsel for the respective Respondents at the onset of the hearing herein, primarily be- cause of the statement of the General Counsel in regard to his problem of the procurement of witnesses. In retrospect the Trial Examiner is convinced that no one could have fore- seen the problems that arose thereafter. 14 The record for the most part shows the damsite to be "Chilo," however in some places it is spelled "Shilo." The Trial Examiner is convinced that it is "Shiloh," and he will so refer to it herein His reasoning in this regard is predicated on the fact that the damsite was "up river" from New Richmond, Ohio, near the town of Point Pleasant, which was the birthplace of Gen. U. S. Grant. Since Grant was the commanding general of the victorious Union forces at the Battle of Shiloh (and Pittsburgh' Landing and/or Vicksburg ), it is natural that the United States dam near his birthplace should be named after one of his great victories in the Civil War. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the river, not only for flood control and navigation, but as a part of our overall conservation program.15 Again, at this same time similar projects were underway "up-river" at or near Greenup, Kentucky, referred to herein as the "Greenup Dam," and "down river" at or near Markland, Indiana, referred to, herein as the "Markland Dam." As a matter of fact these jobs were nearing completion at the time Kiewit was awarded its contract on May 9, 1958. As indicated above Kiewit's job was to construct a cofferdam on the Ohio side of the river. The cofferdam was the first step in the ultimate construction of a dam and locks on the Ohio River. That the Kiewit project was one of many that were to follow at the damsite is indicated by the fact that Kiewit was to receive $1,800,- 000, for the construction of the cofferdam, while the entire project was to cost around $80,000,000. The record clearly shows that after Kiewit was awarded its contract, the dam- site was visited regularly by members of the Unions involved herein, for the obvious reason that it was located in the geographical jurisdiction of the District Council, and might possibly be the source of jobs for many of them in the future, particu- larly those whose livelihood depended upon the construction industry.is Before we get into the complicated issues involved herein, the Trial Examiner is convinced that a resume of the testimony as regards the construction of a coffer- dam, and its purpose should be set forth herein. To begin with, a cofferdam is a series of circular containers (in this case, 60 feet in diameter), linked together which eventually form a dam. The containers are fabricated from long sheets of steel which are driven into the bed of the river by a piledriver. When the cofferdam is all linked together, and/or completed, then the water and debris is pumped out and removed from the area inside it.17 After this is done, the bed of the river is ready for the construction of the goal of the project, in this case a series of locks and a dam on the Ohio River, referred to herein as the Shiloh Dam.is The containers or cylinders referred to above are constructed from strips of steel 76 feet long and three-eighths of an inch thick. They are linked together by the piledriver crew which, the record indicates, consists of five or six men called pile- drivers and one of whom must be a certified welder. The Carpenter's Union has jurisdiction over piledrivers. The cofferdam when completed consisted of 56 "cells" or containers, and was about, 1 mile long and extended out into the Ohio River approximately 550 feet.19 ,From what the Trial Examiner gleans from the record, Robert Sauer, business agent for the District Council, met with Robert B. Kitchen, Kiewit's general super- intendent in charge of the Shiloh job, shortly after it had been awarded the contract on May 9, 1958. The meeting was at a trailer camp near New Richmond, Ohio. At the meeting Kitchen informed Sauer that the job was to be constructed under the Kentucky Heavy and Highway Agreement,20 and that the terms and conditions of employment were to be worked out at a conference with the "Louisville, Kentucky, area Carpenter's Union." Sauer told him, in substance, that he was in error in this regard, because the damsite was within the geographical area of the Ohio Valley District Council's jurisdiction, which as noted above included Clermont County, Ohio. That Sauer's statement was of grave concern to Kitchen is amply demonstrated in the record. Suffice to say at this time that there is a considerable difference in the wage structure of the two agreements. For example, under the Kentucky Heavy and Highway Agreement, Kiewit would be required to pay time and one-half for overtime, while under the District Council's agreement it would be required to pay double time for overtime. Naturally this was of grave concern to Kiewit because its bid on the project was predicated upon the terms and conditions of employment as set forth in the Heavy and Highway Agreement, and was one of the important questions to be discussed at the Louisville conference 21 The record shows that this problem was is This is a matter of common and notorious knowledge, particularly to those who recall the disastrous floods of 1937. 10 The importance of this observation will be apparent below. 17 In this case out of the Ohio River. For a description of the operation see the testimony of Robert P. Kitchen, general superintendent of Kiewit , who was in charge of the job we are, concerned with herein, at pages 303 to 320, and Respondent Unions' Exhibits Nos. 3, 4, and 5. 10 The testimony in the record for the most part refers to the containers as "cells " 20 See General Counsel's Exhibit No. 8. 21 When Kiewit bid on the job it literally applied the official boundary line of Kentucky, which - is the northern bank of the Ohio River . There is no "middle of the river" Isne between either West Virginia and Ohio, or between Kentucky and Ohio, Indiana and Illinois. The boundary line was set by the terms of what is historically styled "The CARPENTERS LOCAL UNIUN.224, ETC. 305 finally settled by an international vice president of the Brotherhood of Carpenters and Joiners Union, who entered into an agreement with Kiewit that 10 of the cells on the Ohio side of the river were to be constructed under the District Council' s terms and conditions of employment, or as referred to in the record "under the Building Trades Agreement," 22 and the remaining 46 cells under the Kentucky Heavy and Highway Agreement. On or about May 15, 1958, representatives of Kiewit and the District Council met at the Gibson Hotel in Cincinnati, Ohio. Kiewit was represented by Kitchen and Richard Coynes, one of its attorneys from Omaha, Nebraska. The District Council was represented by George Osterkamp, recording secretary, and Sauer, White, and Austin, its business agents. As the Trial Examiner sees it, at this time no final de- termination had been made regarding whether or not the Heavy and Highway Agree- ment or the District Council's standard agreement in the Cincinnati area would apply to the Kiewit job. However, this matter was discussed at some length at the meeting. Insofar as the issues herein are concerned the most important matter discussed was the availability of manpower in the area that Kiewit could rely upon to construct its cofferdam at the Shiloh damsite. The record shows that this was the first job for Kiewit in the Cincinnati area. Quite naturally it looked to the District Council for assistance in this regard, which we all know is common practice in the construc- tion industry; and was undoubtedly the primary purpose of the meeting. Kiewit was aware of the dams and locks under construction at Greenup, Kentucky, and Mark- land, Indiana, and was in a position to estimate their completion, and contemplated using some of the experienced workmen who had been employed,on those jobs, the most important being piledrivers. Since this is a highly skilled craft and under the jurisdiction of the Carpenter's Union, Kiewit by necessity was compelled to go to the logical source of such manpower, the Ohio Valley District Council of the Car- penter's Union. From what the Trial Examiner gleans from the record there were very few piledrivers available in the Cincinnati area. According to Osterkamp, who clearly was in a position to know, there were around 30 to 40 piledrivers in the entire area. In addition the record shows that at this time there was another pile-driving job in the area (the Raymond job) that was using at least some of the piledrivers that Osterkamp had reference to. The agreements ultimately reached by the parties at this meeting will be discussed and disposed of below. Suffice it to say at this stage of the report that the agreements allegedly reached are the basis of the General Counsel's complaint in Cases Nos. 9-CB-501 and 9-CB-621. Let us now look at the complaint. As indicated above, the Regional Director for the Ninth Region issued his com- plaint against the Respondent Unions involved in the Kiewit project on April 14, 1959, in which he alleged, inter alia, as follows: Pursuant to an oral exclusive hiring agreement between the Respondents and Kiewit, in effect at all times material hereto, Kiewit was caused to hire and did hire exclusively through the Respondents, only employees, as carpenters and pile drivers, who were cleared for employment by or sponsored by the Respond- ents, at Kiewit's construction project at the New Richmond Dam. At all times material hereto, pursuant to the oral exclusive hiring agreement alleged above, the Respondents regularly collected from Kiewit's carpenter and pile driver employees at its New Richmond Dam project initiation fees, dues, non-membership dues, assessments , dobie and work permit fees, the names of said employees other than Gene L. Falls, Glen Beckett, John Ellison, K. L. Locke, W. M. Parmley, Junior Cheek, Edward Fisher and Goodloe Gay as well as the exact amounts of which said collections are unknown to the Regional Director. On or about July 10, 1958 and thereafter, pursuant to the exclusive hiring agreement alleged above, the Respondents by and through their agents Robert Ordinance of 1787." Under the terms of the ordinance, Virginia ceded all of her right, title, *and interest to her claims of territory north of the Ohio River, and Connecticut ceded her claims to a strip of land approximately 120 miles long and 30 miles wide running from the western line of Pennsylvania westward along Lake Erie, commonly referred to as the "Conn. Reservation," to the "United States" which was then in process of creation. From this action stemmed the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin. One of the terms of the ordinance was the abolition of human slavery. What Kiewit failed to take into consideration when it bid on the Shiloh job was the geographical jurisdiction of the District Council This explains the presence of an inter- national vice president at the Louisville, conference. See General Counsel's Exhibit No. 9. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sauers and George Osterkamp, and other agents whose names are unknown to the Regional Director, attempted to cause and caused Kiewit to refuse to rehire Falls for pile driver work at said project, because he was neither cleared for nor sponsored by the Respondents, for such employment. By the-acts and conduct alleged above, the Respondents have engaged in un- fair labor practices, "affecting commerce" as defined in Sections 8(b)(1) (A) and (2) and Sections 2(6) and (7) of the Act respectively. On April 15, 1959, the Respondent Unions filed answers through their counsel, Robert A. Wilson, in which they admitted that Local 224 and the District Council were labor organizations within the meaning of the Act, but denied the commission of any of the unfair labor practices. Thereafter on June 2, 1959, they filed amended answers to the complaint in which they made practically the same admissions and denials as in their original answers, with this one important change, in its amended answer Local 224 denied that it was a labor organization within the meaning of the Act. Since the Trial Examiner has disposed of this question above he sees no necessity for reiterating the issue in this section of the report. Suffice it to say that the only reason he has rementioned the complaint and the answers of the parties is to pave the way, so to speak, for the disposition of the issues herein. After wading through hundreds of pages of testimony the Trial Examiner cannot resist paraphrasing the famed pamphleteer whose writings kept alive and sparked the waning -hopes and ideals of our ancestors at Valley Forge: this is indeed a case to "try men's souls." 23 To the Trial Examiner, at least the record herein is a maze of contradictions, with witness after witness on both sides of the aisle ad- mitting and denying in the same breath, in a manner suggestive of "negative preg- nantism" of a bygone age.24 Other than this observation the Trial Examiner has no further comment in this regard. The record shows that there were several meetings between Kitchen as the repre- sentative of Kiewit and Sauer and Osterkamp as representatives of the District Council during the months of May, June, and July, 1958. Some were at the jobsite and at least one at the Gibson Hotel in Cincinnati, Ohio. The record is so con- fused in this regard, particularly as to dates, that the Trial Examiner is convinced that the only solution to this problem is to set forth herein his ultimate findings as to just what agreement the parties arrived at insofar as the construcion of the cofferdam at Shiloh is concerned. As the Trial Examiner interprets the record there is no substantial evidence to support the General Counsel's position that "Par. 5-Pursuant to oral exclusive hiring agreement between Respondents and Kiewit, in effect at all times material hereto, Kiewit was caused to hire and did hire exclusively through the Respondents, only employees, as carpenters and piledrivers, who were cleared for employment by or sponsored by Respondents, at Kiewit's construction project at the New Rich- mond Dam." 25 The Trial Examiner's finding in this regard is not necessarily predicated upon the denials of Kitchen, Osterkamp, and,Sauerthat• there was such an agreement, but primarily upon the very nature of and the location of the job. Nor is his finding in this regard to be considered as disposing of the other issues that are inherent in the agreement that was actually worked out by the parties prior to and after the job started. Let us first dispose of the "exclusive hiring hall" theory of the General Counsel. In the first place, the record shows without contradiction that there were very few piledriver members of locals under the jurisdiction of the District Council. Oster- kamp estimated that there were around 30, out of a total membership of about 3,000. The record also shows that at the time the Kiewit job was in progress some of these same piledrivers were employed on one of Raymond's jobs in the city of Cincinnati, Ohio. Hence it is obvious that the District Council by no stretch of the imagination could furnish the piledrivers needed for the Kiewit job, which eventu- ally reached a peak of at least 6 crews, which would require approximately 36 to 40 piledrivers, or more,thawwere in the entire area. It must be borne in mind that a piledriver's job is not performed in a "bed-of-roses" atmosphere, so to speak, but 23 Thomas Paine, often referred to as the "Pamphleteer of the American Revolution." u From a common law pleading styled a "negative pregnant, " which was not only frowned upon by the courts in an earlier age but fatal to the pleader as a defense device as well. "A denial in such form as to imply or express an admission of the substantial fact which apparently is controverted , or a denial which although in the form of a traverse, really admits the important facts contained in the allegations to which it re- lates. Cramer v. Aiken, 63 App D.C 16, 68 F. 2d 761, 762." 25 Paragraph 5 of the complaint. CARPENTERS LOCAL UNION 224, ETC. 307 to the contrary, because he not only is constantly subjected to the whims and caprices of the weather, but at least one of the crew on the Kiewit job had to work alone 76 feet up in the air. This factor alone would tend to explain the scarcity of piledriver members in the jurisdictional area of the District Council. Faced with the foregoing facts Kiewit of necessity was required to hire piledrivers from the "river-bank," without first clearing them through the District Council. What happened after they were hired is another story and will be dealt with below. As indicated above, Robert P. Kitchen wasat all times material herein the super- intendent for Kiewit in full charge of the project. He was assisted in the per- formance of his job by the following assistant superintendents: Zynn Wilson, Wes Bethye, Bud Cole, and Bob Snap. According to Kitchen, he and the assistant superintendents "normally" had sole right to hire and fire. What Kitchen meant by "normally" is one of the issues herein, and will be disposed of below. Suffice it to say that the record shows that the stewards for the District Council likewise had more than a passive role in this regard. The stewards were the District Council's agents on the job. They were all ap- pointed by Sauer, its business agent at all times material herein. While it is true that there is some evidence in the record that the first man on the job ordinarily was the steward, nevertheless the Trial Examiner is convinced and finds that insofar as the Kiewit job is concerned, Sauer selected and appointed the stewards. There were three stewards on the job at times material herein: Glenn Beckett on the day shift, Eddie Fisher on the second shift, and Paul Howell on the third shift. The Trial Examiner has found above that there was no "exclusive" hiring hall agreements between Kiewit and the District Council. By this statement he referred to the fact that Kiewit did hire "men from the bank." We now come to the actual practice, or in other words what was the arrangement between Kiewit and the District Council. The record shows that at times Sauer and Osterkamp admitted that Kiewit called the District Council's office for piledrivers, and that they referred qualified members of the Union to the job. On the other hand they emphatically denied that such was the practice. The only answer to such confused testimony is to examine care- fully the testimony of each in the light of the record as a whole, and in particular with that of Kitchen. In view of the Trial Examiner's ultimate findings herein he deems it unnecessary to burden this, already a too-lengthy report, with a page-by- page resume of the testimony of these witnesses. Suffice it to say that he will con- fine himself to what he considers the "high-spots" of their testimony. Let us first look at the testimony of Kitchen. As indicated above he was Kiewit's superintendent in charge of the job at all times material herein. According to Kitchen it was Kiewit's practice to operate on the same basis as other contractors in the area where it had a job, insofar as any particular union's jurisdiction was concerned. Though he denied that there was any so-called hiring hall understanding or arrangements between Kiewit and the Respondent Unions, he did testify to the effect that if the Union could not furnish the men at the times he needed them, then he could "get them wherever he could." The Trial Examiner is inclined to and does find from this admission of Kitchen, when considered in the light of (1) the admissions of Sauer and Osterkamp, and (2) the testimony in the record as regards the role played by the stewards on the job, that Kiewit, either through Kitchen or one of its superintendents, did have an oral agreement, practice, or understanding with the District Council to keep in its employ only those pile- drivers who had either been approved by the District Council, or those who had been approved by the stewards on the job after they had met the required tests as set forth in section 30 of the constitution, bylaws,, and trade rules of the Ohio Valley Carpenters District Council, pertinent excerpts from which follow below: PAR. A-The first member on any job (foreman accepted) shall be Steward until the Business Agent arrives. The Business Agents shall appoint all Ste- wards, who shall fill out and send in Steward's report cards weekly to the District Council. PAR. B-The Steward shall immediately see that all carpenters on the job have the current working card or bona fide permit, and all members coming on the job thereafter shall show working credentials to the Steward before starting to work. PAR. C-The Steward shall take care of sick or deceased members, and notify the office of all cases of sickness or accidents. Also take care of the tools of any sick, absent or injured members and send same to the office at the completion of the job. 614913-62-vol 132-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PAR. D-The Steward shall report to the office immediately any infraction of the Rules or Agreement. PAR. E-The Steward shall have the power to examine the pay envelope or pay check of any member on the job , upon the order of the Business Agent or District Secretary. PAR. F-Any Steward who is discriminated against for performing his duties as such, shall, upon proper investigation by the Business Agents (and found true), be given the protection of the Organization. PAR. G-If at any time the weather is too bad to work, the Steward or Busi- ness Agent shall order the members to stop work until it moderates. If the majority of carpenters on the job decide to leave, such shall prevail. Any member refusing to stop work or leave job shall be subject to fine or removal from the job, or both. PAR. H-The first member starting to work on a job shall notify the District Council office of the location of the job. PAR. I-No foreman shall act as Steward except by orders of the District Council. The Trial Examiner has found above that Kiewit did hire piledrivers from "the river bank." The record shows without contradiction that a great number of these employees went out to the damsite, on their own initiative and were hired by Kiewit upon the recommendation of men who were already on the job . To the Trial Examiner there was nothing unusual about this procedure, for the simple reason that in most instances the men had worked together on other pile -driving jobs in the area. Kitchen, in the course of his testimony, admitted that after these men were hired "they," meaning the superintendents on the job, "told the Union Stewards" of their action in this regard. As indicated above, this phase of the case will be dealt with below. Suffice it to say at this time that Kitchen by this admission has convinced the Trial Examiner that the District Council's bylaws were enforced throughout the project insofar as the tenure of employment of the piledrivers on the job was concerned. The Trial Examiner has set forth herein above section 30 of the District Council's bylaws which set forth the duties of the stewards. Again, the record clearly shows that Sauer, the business agent in charge of the project for the District Council, called at the jobsite at least once and sometimes twice a week and checked the activities of the stewards (which he himself had designated on each shift). One would be most naive to believe that he merely called at the jobsite to check up on the sanitary and safety conditions provided by Kiewit for the benefit of its employees, especially in view of the plain language of the con- stitution and bylaws of the District Council 26 Further evidence of the Trial Examiner's finding in regard to the enforcement of the District Council's bylaws on the Kiewit job is found in the testimony of Sauer himself. According to Sauer he went to the jobsite on the afternoon of May 26, 1958, the day the job started, for the primary purpose of appointing Glenn Beckett steward. He was accompanied by Robert Tackett, an organizer for the Carpenters' Union, and Russell Austin, one of the business agents for the District Council. When they arrived at the jobsite they met with the following piledrivers: Gene Falls, the Charging Party herein, "Tex" Parmley, Sam Spade, John Ellison, and Glenn Beckett. "Bud" Cole, Kiewit's assistant superintendent on the shift was also present. The first thing that Sauer did was to check "'all the boys' cards and made Beckett the steward, the ones that had cards." 27 Shortly after Sauer ap- pointed Beckett steward, Zynn Wilson drove to the jobsite and walked over to the group. After Sauer had finished talking to the piledrivers he told Wilson that he had appointed Beckett as the steward on the job. Since this was on or about the first day of the job there was only one shift working and he would be the only steward on the job. Actual pile-driving did not get underway until a week or two later. The record clearly shows that there was a lot of preliminary work to be done before the iob actually got underway, such as unloading equipment, storing it, and a host of other similar duties that the pile-driving crew was expected to do. That the stewards were expected to follow section 30 of the District Council's constitution and bylaws is evidenced by the following pertinent excerpt from Sauer's testimony: 28 Q. (By Mr. WILLIAMS.) What are the duties of a steward? They are set out in your- 26 See General Counsel's Exhibit No 5 2 Quotes from Sauer's testimony at page 590 of the record 28 See infra for excerpts from section 30. CARPENTERS LOCAL UNION 224, ETC. 309 TRIAL EXAMINER: I know, but let's have the witness' testimony. Q. (By Mr. WILLIAMS.) Trade rules and bylaws, are they not? Could you tell us what they are? A. In other words, the duties of a steward is to be the union's representative when the business agent is not there to protect the safety standards, to check the men to see that they have suitable water and see that no other trade in- fringes on our trade autonomy, to keep a record of the men's dues, if they are paid or not. TRIAL EXAMINER: And to see they are members of the union? The WITNESS: Yes, or otherwise they would notify us when the men started to work. TRIAL EXAMINER: I see. You have that sort of an understanding with Kiewit, didn't you? The WITNESS: We had an understanding that we would have stewards on the job. TRIAL EXAMINER: Sure. The WITNESS: Which that is the normal procedure with all contractors that we work with. TRIAL EXAMINER: And what you did, you had an agreement with-under- standing with Kiewit that the steward would have the duties that you testified to; is that correct? The WITNESS: That's right. TRIAL EXAMINER: All right. The WITNESS: It's filled out in here. [Witness refers to General Counsel's Exhibit No. 5.] TRIAL EXAMINER: I understand. [Emphasis supplied.] From what the Trial Examiner gleans from the record Sauer sent Falls, Sam Spade, John Ellison, and Glenn Beckett onto the job on the morning of May 26, 1958, at the request of Kitchen. According to "Tex" Parmley, he was hired by Kiewit at the jobsite. Since both Kitchen and Sauer refer to "five" men in their testimony, as to the number that the Union was to send out to the job on the morning of May 26, 1958, the Trial Examiner is convinced that Sauer was aware that Parmley had been hired by Kitchen or Wilson before the job started and that it was for this reason that he included him in the names of piledrivers set forth above. Since Sauer admitted that he kept in touch with Kitchen, Wilson, and other officials of Kiewit by telephone while the job was underway, it is reasonable to infer that he had been advised that Parmley would be at the jobsite on the morning that the job started. The above observation of the Trial Examiner is predicated not only upon Parmley's undenied and uncontradicted testimony that he called at the jobsite on many occasions before it started,29 but upon the testimony of numerous witnesses herein, that it was the custom of members of the Carpenters' Union to call at the site of construction jobs, both before and after they started, in their search for employment. Such was the situation at the Kiewit job. On one of his trips to the jobsite, he met Zynn Wilson and Bud Cole. This was on Saturday, May 24, 1958, 2 days before the job started. In the course of his conversation he pulled his Carpenters' card out of his pocket and showed it to Wilson, who did likewise. Parmley testified that this was common practice in the construction industry. The Trial Examiner credits his testimony in this regard, primarily because witness after witness testified at the hearing herein that this was the custom. He also credits Parmley's testimony that he got his job through his own efforts, and not through the Respondent District Council. While it is true that the record shows that he had "checked in" with the District Council about a year before he went on the Kiewit job, there was no requirement legal or otherwise that he had to sit around and wait until he was given a "permit" or "referral" slip from the District Council before he could go to work. Here again, Parmley's testimony, as well as that of other witnesses, impressed the Trial Examiner of the independence of carpenters as craftsmen, and their pride in securing their own jobs, and passing word along to their fellow craftsmen of the availability of jobs at construction projects. Parmley, commonly referred to as "Tex" in the record, impressed the Trial Examiner as an "independent sort" of a person, and fundamentally an honest witness. Let us now consider Osterkamp's testimony, a great portion of which was devoted to the setup and operation of the Ohio Valley District Council. It was his job as recording secretary to administrate the rules of the District Council, as set forth in its constitution and bylaws, and to keep its records. As indicated above, he was " The record shows that he lived nearby in a trailer camp 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elected to his position by the members of the 17 locals that make up the Council. His testimony in regard to the various meetings between the representatives of Kiewit and the District Council are along the same line as that of Kitchen and Sauer which has been referred to above. Insofar as any agreement between the District Council and Kiewit is concerned, his testimony in substance was that he told Kitchen that they would "cooperate" with Kiewit in the completion of the job; and that "the cooperation meant that we would send up whoever was available and that he would do the hiring there, that's the basis of the cooperation." He admitted that he received telephone calls from Zynn Wilson, one of Kiewit's superintendents on the job, from time to time in regard to sending piledrivers to the jobsite, and that he in turn would sent whoever was available at the time. If none were around the union hall at the time he would try to contact them by telephone at their homes. As indicated above, each crew of piledrivers had a foreman. According to Oster- kamp, under the District Council's agreement with employers, where five or more men are employed one must be designated as foreman by the employer.30 One of the most important issues herein involves the issuance of "permits" and/or "referral" slips from the District Council as prerequisite to the procurement of em- ployment on the Kiewit job. This is particularly so in 'regard to the "out-of-town" piledrivers who were employed by Kiewit. As the Trial Examiner interprets Osterkamp's testimony regarding "out-of-town" piledrivers or carpenters who come into the geographical area of the District Council to work, they are required to (1) either join a local union in the District, or (2) retain his membership in his home local and pay dues prevalent in the Cincinnati area, and that all it actually amounts to is to keep the man in good standing in the Carpenter's Union. After the man has complied with the rules in this regard he is given a "permit" which he carries in his pocket "like a working card " 31 The permit asissued by the District Council is set forth below: OHIO VALLEY CARPENTERS' DISTRICT COUNCIL 1228 Walnut Street Packway 2627 [Union 78 Label] SPECIAL PERMIT CINCINNATI, -------- 19__ This is to certify that ---------------------- is entitled to work on this permit until -------------- evening ------ 19---- $-------- ---------------------------- Secretary of District Council According to Osterkamp the permit is the same as a receipt and has nothing to do with a person's employment. However, he later testified to the effect that if a mem- ber from another local came into the area and went to work without transferring his membership into a Cincinnati local, or did not "pay the equivalent in dues, he would be in violation of the Laws of the Brotherhood and that charges could be brought against him and he could be fined." He insisted, however, that the Dis- trict Council did not "force his removal from job." Here again we must look to the testimony in the record of other witnesses regarding Osterkamp 's credibility as a witness, for example, ,that of Loman , Johnson, and Taylor. In the considered opinion of the Trial Examiner Osterkamp 's testimony in regard to the Kiewit agreement is of the utmost importance . To begin with he emphat- ically denied time and again in the course of his testimony that there was any hiring agreement between Kiewit and the District Council, except that the District Council would send men out to the job when Kiewit called the office. Moreover, he stressed the point that Kiewit could hire whomever it pleased and that this was of no con- cern to the District Council. On the other hand, he testified that Kiewit agreed to work under the terms and conditions of employment of the "1958-1959 Carpenters Agreement" between "The Building Division, Cincinnati Chapter , Associated Gen- eral Contractors Of America, Inc., and The Ohio Valley Carpenters ' District- Council,32 hereinafter referred to as the Union . 33 30 See General Counsel's Exhibit No 9, article VII. 31 Quotes from Osterkamp's testimony. 3= See General Counsel's Exhibit No 9 3° For reasons which will be apparent below attention is called to the facts that the District Council to the party to the agreement, not Local 224. CARPENTERS LOCAL UNION 224, ETC. 311 That the above agreement was considered of importance by all the parties at their discussion at the meeting on May 1, 1958, at the Gibson Hotel was emphasized by Osterkamp in his testimony wherein he said that ". . . At no time was anything deviated from this particular contract" (indicating General Counsel's Exhibit No. 9). In view of his testimony let us look at articles IV and V of the agreement: ARTICLE IV RECOGNITION AND PROCEDURE-SECTION 1. The Employer recognizes the Union as the sole and exclusive bargaining representative of all carpenters in the employ of the Employer for the purposes of collective bargaining concerning wages, hours of employment, and all other conditions of employment. SECTION 2. The term "Carpenters," as used herein, shall mean all employees of the Employer coming within the jurisdiction of the United Brotherhood of Carpenters and Joiners of America, as recognized and determined by the National Labor Relations Board and the National Joint Board for the Settle- ment of Jurisdictional Disputes. SECTION 3. Both parties to this Agreement agree to abide by the terms and provisions of the Agreement, effective May 1, 1948, as amended by Agree- ment, effective October 1, 1949, creating the National Joint Board for the Settlement of Jurisdictional Disputes. In particular, both parties agree to Article V, Section 5, of the Agreement, which states: "Any decision or inter- pretation by the Joint Board shall immediately be accepted and complied with by all parties signatory to this Agreement." The Employer and the Union further agree that there will be no stoppage of work during the period pending a jurisdictional decision. ARTICLE V UNION SHOP-The Employer agrees to require membership in the Union, as a condition of continued employment of all employees covered by this Agreement, within thirty-one (31) days following the beginning of such em- ployment or the effective date of this Agreement, whichever is the later, pro- vided the Employer has reasonable ground for believing that membership is available to such employees on the same terms and conditions generally ap- plicable to other members and that membership is not denied or terminated for reasons other than the failure of the employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Later on he testified in regard to the above agreement and the District Council's constitution and bylaws as follows: Q. Would you explain to the Trial Examiner, and on this record, just how you operate relative to jobs in this area? A. You mean how I personally, or the general practice of the- Q. How the Union operates, the Carpenters District Council? A. First of all, this we have to recognize as our Bible from job relationships [indicating]. Q. That's General Counsel's Exhibit- A. Employer-employee relationships. We represent the members. Q. By this you mean General Counsel's Exhibit Number 9? A. That's right. The bylaws and constitution is a matter that the member agrees to live by, he takes an obligation to live by it. [Emphasis supplied.] As indicated above, the testimony of both Osterkamp and Sauer has posed a baffling problem to the Trial Examiner, as to their credibility as witnesses. For example, Osterkamp testified at times that the constitution and bylaws of the Inter- national, The Ohio Valley District Council, and the agreement between the Asso- ciated Contractors of America and the District Council are not only binding on the District Council, its membership, and officers, but the terms and conditions as set forth in the agreement with the Associated Contractors was "their Bible." Later on he testified that certain sections of the foregoing documents are "never enforced." Let's take a look at an excerpt from his testimony that illustrates this observation of the Trial Examiner: Q. Now, let's get into the interpretation of these laws. Mr. Williams was discussing these things to some extent. TRIAL EXAMINER: What exhibits? Mr. WILSON: Five. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. OSTERKAMP: Five was Constitution, By-laws and Trade Rules of the Ohio Valley. TRIAL EXAMINER : That's your exhibit. That's admitted, isn't it? Mr. WILLIAMS: Yes. TRIAL EXAMINER: That takes care of it. The reason I said that was I have a list of the Respondent's exhibits and I have a number "five" marked. That's been admitted, I know that. Mr. WILLIAMS: Right. Mr. WILSON: Now, directing your attention to section twenty-five on page thirty-two. Mr. WILLIAMS: Twenty-five? Mr. WILSON: Yes, section twenty-five, page thirty-two. Direct your attention to paragraph G which says any carpenter, foreman or other member in this District who employs or works carpenters without working bona fide permit in this District shall be fined for the first offense and for the second offense he shall be ruled off the job for the duration of the job. How does, how is that interpreted and applied? A. (By Mr. OSTERKAMP.) Bob, that is not very often ever applied in any manner. In other words there are certain paragraphs in here that just can't be enforced under the Federal laws at the present time. Now, in the event in this particular paragraph here if a man is working under the terms and petition of our contract, there is nothing we can do about it. Regardless of whether he has a working permit or a working card, so long as he is working under the terms and receiving the wages and condition of our agreement, that's as far as we can go with it at the present. Q. In other words you insist. A. Oh, definitely, we have to insist on the contract. Q. None of your members work with anybody unless it is on your work and unless they are working under the terms and conditions of the Carpenters Union. Is that correct? A. Of the contract. Q. Of the contract. A. That's right. [Emphasis supplied.] In the considered opinion of the Trial Examiner the only possible approach to a solution of the baffling and confusing testimony of Osterkamp and Sauer is to con- sider it in the light of the whole record, particularly the testimony of witnesses who worked on the Kiewit and other jobs in the area and "run afoul" of the District Council's constitution and bylaws as applied in actual practice on the job. Let us first consider the testimony of Frank Taylor, who was "permitted" to work for a few days on the Kiewit job by the District Council. According to Taylor he called at the jobsite sometime around the middle of July 1958 to inquire about a job. At the time he was a certified welder. While he was there he saw Bud Cole, one of Klewit's superintendents, with whom he had worked on the St. Lawrence Seaway project. Cole told him ". . . that they could use my services and told me to go to the union hall, pick up our [sic] permit to go to work." 34 Taylor went to the union hall, that is, to the District Council's offices, and talked to Bob Sauer about the job. Sauer gave him an application to fill out, and collected a $5 fee from him. He asked Sauer if it would be all right for him to go on out to work because "they wanted me to go to work on the next shift." By that he meant the second shift which was from 4 p.m. to 11:30 p.m. Sauer replied as follows ". . . I can't stop you from going to work." Taylor then went on out to the job, and went to work. On the next day he went back to the union hall and went before the examining board. After the examination he went back to work, and worked out the shift without any trouble. What happened on the next shift is a different story. As the Trial Examiner sees it the examining board of the District Council rejected Taylor's application for a permit to work on the Kiewit job. When he reported to work the next afternoon, the pile-driving crew to which he had been assigned by Bud Cole walked off the job. According to Taylor he heard Edward Fisher, the steward on the job, tell one of the crew ". .. I am not working with him. . . . I can't afford to pay a $500 fine." Fisher denied that he made the above statement. He did, however, admit that the crew walked off the job and was sent home, because of a "bad water" situation. According to Fisher some of the men on the crew became ill, and were vomiting, 14 Quotes from Taylor's uncontradicted and undenied testimony which is credited by the Trial Examiner. CARPENTERS LOCAL UNION 224, ETC. 313 and that this was the reason that they walked off the job. He further testified that the drinking water was so bad that the U.S. Engineers "finally made them quit using it" and eventually secured a new supply for them. From the foregoing it is obvious that the Trial Examiner is faced with a serious question regarding the credibility of the witnesses, Taylor and Fisher. After care- ful consideration the Trial Examiner is inclined to and does credit Taylor's testi- mony in regard to the above incident. Several factors have persuaded him, one of which is the fact that Fisher as steward on the job had no alternative in the matter under the Ohio Valley District Council's constitution and bylaws, particularly sec- tion 30, paragraphs B and D, which has been set forth in toto herein above. As the Trial Examiner sees it Fisher, not only as the steward on the shift, but as a member of Local 854, Madisonville, Ohio (one of the locals that was within the geographic jurisdiction of the Ohio Valley District Council of the Carpenters Union),35 he was required to abide by the constitution and bylaws of the District Council, particularly section 24.36 Section 24 PAR. A-No member of the affiliated local unions of this District shall work on a job with any person who is employed in any of branches or subdivision of the carpentry industry, unless such person is a member of the United Brother- hood of Carpenters and Joiners of America and in possession of the quarterly working card and button on bona fide permit, nor shall he permit anyone but members of the United Brotherhood of Carpenters and Joiners of America to assist him in the handling of any and all material, tools or equipment used in carpentry industry, after such material or equipment has been delivered on the jobsite. For conviction of any violation of this section he shall be fined, dis- barred from the job, or suspended for three (3) months. PAR. B-No member will use, handle, install, or erect any material produced or manufactured from wood not made by members of the United Brotherhood. The Trial Examiner is not unmindful of the testimony of Osterkamp and Sauer that such sections of the constitution and bylaws were rarely if ever enforced. He has disposed of their testimony to some extent above, and will have more to say in this regard below. Another persuasive factor in the Trial Examiner's resolution of the credibility issue now before him was Taylor's uncontradicted and undenied testimony regard- ing the following conversation he had with Superintendent Bud Cole shortly after the crew walked off the job: Q. Well, then, you say this-You heard this steward say he wouldn't work with you, then what happened? A. The men started walking off the job. Q. Well, then how long did you continue to work, then? A. Well, possibly an hour, finally Bud Cole, the superintendent hollered down where I was working and said, "Come on out, I can't run the job with one man." And he told me to go on home and come back the next morning and see how they get things thrashed out, which I did, and when I went back to go to work my next shift, when I had the appointment, why they gave me my time. Q. Paid you off? A. Paid me off. And Bud Cole told me that this was not his doing, he said, "I got my orders from Omaha." Mr. WILSON: He said what? The WITNESS: He said, "This is not my doing, you did your work well, but I got my orders from Omaha from the head office." TRIAL EXAMINER: Who said that now? The WITNESS: Bud Cole, the superintendent. Q. (By Mr. WILLIAMS.) He was your superintendent. A. He was my superintendent. The Trial Examiner has indicated above the difficulty he has encountered in re- solving the credibility issue as to the testimony of Sauer and Osterkamp in regard to the practice of the District Council in situations such as the Taylor incident above. With this in mind the Trial Examiner now turns to what he considers the most 13Local 854, like Local 224, was one of the regularly chartered Locals that made up the Ohio Valley District Council. See infra 10 See General Counsel's Exhibit No 5, page 31 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persuasive evidence in the record regarding the practice of the District Council's officers and agents. Moreover, this evidence has been a most compelling factor in his ultimate determination of the Taylor incident. He has reference to the testimony of Earl Johnson and Herschel Toman who at the time of the incident which we are about to relate herein were employees of the Knowlton Construction Company, Bellefontaine, Ohio. At times material hereto it was engaged in the construction of a schoolhouse at Indian Hills, a suburb of Cincinnati, Ohio. Johnson was the superintendent on the job, and Toman was one of the foremen. Both were mem- bers of the United Brotherhood of Carpenters and Joiners Union, Local 104, Dayton, Ohio. Johnson testified in substance that on or about June 24, 1958, Bob Sauer, business agent for the District Council, came to the jobsite and questioned him about two carpenters who were working on the job, Art Stewart and John Hile. All of the other carpenters had walked off the job and were standing around when Sauer ax- rived. Also present at the time was Herschel Toman, the carpenter foreman. The first thing Sauer did was to ask Johnson for his card. He took it out and showed it to him. Sauer then informed him that he was filing charges against him because he had permitted two carpenters to work on the job without a permit from the District Council. He had reference to Art Stewart and John Hile. As the Trial Examiner interprets the record there had been some dissension among the carpenters over Stewart and Hile working on the job without a permit from the time they went to work, which was the day before, June 23, 1958. Their feelings in this regard finally "exploded," so to speak, and they all walked off the job, except Stewart and Hile. One of the eight carpenters who walked off the job called the District Council's office and reported the incident. This was one of the reasons why Sauer went out to the jobsite.37 Johnson told Sauer that he did not hire either Stewart or Hile, but that Harold Heilman, field superintendent of the Knowlton Construction Company, had called him the day before that he was sending them out to the job and for him to put them to work. He also told Sauer that previous employers had told him that he "had no right to refuse a man work." As the Trial Examiner sees it Johnson had no choice in the matter. Regardless of Johnson's explanation Sauer filed charges against him on June 26, 1958, and they were served upon him by registered mail at his home in New Carlisle, Ohio. The charges are set forth below: CINCINNATI, 10, OHIO, June 26, 1958. To The Officers and Delegates of The Ohio Valley Carpenters District Council. DEAR SIRS AND BROTHERS: The undersigned hereby prefers charges against Earl Johnson Local 104, Dayton, Ohio, for violating the Constitution and Laws, Section 55-Paragraph B in the part of the Constitution and Laws of the United Brotherhood of Carpenters and Joiners of America Section 55 PAR. B.: Any officer or member who endeavors to create dissension among the members or works against the interest and harmony of the United Brotherhood, or who advocates or encourages division of the funds or dissolution of any Local Union, or the separation of a Local Union from the United Brotherhood, or em- bezzles the funds, shall be expelled and forever debarred from membership in the United Brotherhood. Specification of Charge "On Monday morning June 23, 1958 Brother Johnson, Superintendent on the job, worked a Carpenter without a bonafided permit causing Local Members to walk off the Indian Mill School Job and thereby losing time. On Tuesday, June 24, 1958, they put on another member to work without a bonafied permit from the District Council Secretary." Respectfully submitted. ROBERT SAUER, Business Agent. Identical charges filed against and served upon Herschel Toman on the same day. Sometime later both Johnson and Toman were tried on the above charges by the District Council, and found guilty. Each was fined $250 for their role in the alleged offense. At the time of the hearing herein Johnson had paid $50 on his fine. R7 See infra as to other reasons why Sauer went out to the job. CARPENTERS LOCAL UNION 224, ETC. 315 Sauer in his testimony regarding the above incident finally neither admitted nor denied that he had made the statements attributed to him by Johnson and Toman, to wit: that he was going to "prefer charges" against them because they had per- mitted Stewart and Hile to work without a "bona fide permit" from the District Council . His eventual answer to the General Counsel's interrogation was "to tell you the truth, Harold, I don't know if I did or if I didn't." Since the "charges" 38 against Johnson and Toman were admitted in evidence without objection as to their "authenticity," 39 the Trial Examiner credits the testimony of Johnson and Toman as to the above incident in toto. In his testimony in regard to the Indian Hills School job, Sauer insisted that the primary reason he went out to the jobsite on June 26 , 1958, was because of numerous complaints he had received from union members on the job regarding working con- ditions. One of the principal complaints was the mud around the jobsite, which had caused one of the workers to fall off a scaffold . Another complaint pertained to the nonunion carpenters who insisted on working at top speed regardless of the unsafe conditions . Sauer described them as "speed-demons ." While these com- plaints were no doubt legitimate, and a proper subject matter for him to investigate, nevertheless the Trial Examiner is convinced that the plain language of the charges against Johnson and Toman speak lounder than words and have been most per- suasive to the Trial Examiner in reaching a determination as to Sauer 's testimony. In the circumstances the Trial Examiner rejects Sauer's explanation as to why he called at the Indian Hills School job on June 26, 1958, and finds that the primary purpose of his visit was as described by him in the charges against Johnson and Toman which have been set forth hereinabove. In view of all the foregoing the Trial Examiner now credits the testimony of Frank Taylor, and finds that he was discharged by Kiewit on or about July 21, 1958, be- cause he was unable to secure a working permit from the District Council. More- over the Trial Examiner finds that the primary reason the crew walked off the job on the last day Taylor reported to work was because the examining board of the District Council had refused to issue him a permit . In passing, the Trial Examiner desires to point out that he is not unmindful of the testimony in the record as to the "bad water" situation on the Kiewit job. He has given this testimony serious con- sideration , and does not doubt that such a situation did exist, but the gravamen of this defense is the fact that there is no substantial evidence in the record showing that the water situation was so bad that it caused vomiting and other "disorders" (that usually accompany "bad water"), among the employees on the first and third shifts. Hence insofar as the Taylor incident is concerned the Trial Examiner is convinced and finds that the Respondent's contention is without merit, After 852 pages of testimony we now come to the case of Gene Falls, the Charging Party herein. At the time of the hearing herein Gene Falls was 39 years old. He was married and had a family. He joined Local 224 on September 19, 1953, and retained his membership therein until sometime in August 1957. Sometime in the late fall of 1957, or in January 1958, he was suspended by Local 224 for nonpayment of dues. At the time he quit paying his dues he was broke and out of a job. The record shows that the only job he had from August 1957 until the spring of 1958 was as "iron- worker" at the Markland damsite, "down river" from Cincinnati , Ohio, where he worked for a few weeks in December 1957. Sometime in the early spring of 1958, he went to the District Council's office in the Carpenters' hall in Cincinnati, Ohio, and discussed his problems with George Osterkamp, its recording secretary. As a result of this meeting he joined Local 224. Under the District Council's constitution and bylaws he was required to pay an initiation fee of $110 in weekly installments, $35 for the first week and $25 a week thereafter until paid in full 40 He made his final payment on June 9, 1958. At the time he rejoined the Union, he first tried to get back in good standing by merely paying up his back dues; however, he could not do so under the constitution and bylaws of the Union. The record shows that Osterkamp explained all of these technicalities to him, particularly as to the rule that he would have to be reinitiated into the Union before his dues could be accepted . As will be shown hereinafter, local unions affiliated with the District Council cannot , and will not, accept dues from either a new member or a reinstated member until they have paid the full initiation fee, and have been formally initiated into the Local. 41 Since these matters 88 Respondents' counsel vigorously objected to their admission on other grounds 89 Photostatic copies of the original charges e See General Counsel's Exhibits Nos 16, 17, 18, and 19. 41 See infra as to the importance of this observation. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are clearly internal union affairs, the Trial Examiner deems it unnecessary to dwell at great length on this question. Suffice it to say that the only reason he has referred to it is because it does by indirection play a role in the Trial Examiner's ultimate de- termination of the issues herein. Shortly after Falls had straightened up his union affairs he went to work for Foley and/or McCarthy on a job located on Gest Street, Cincinnati, Ohio. The record shows that he went to work on the Gest Street job on or about April 22, 1958 He worked there for about 2 weeks, when it was shut down on account of high water on Mill Creek. About 2 or 3 weeks later Osterkamp called him and told him about the Kiewit job. He also told him that the following members of the Union were also going out to the job: Bill Jones, John Allison, Spade, and Glenn Beckett, and gave him their telephone numbers. Since Falls did not have a car, he called John Ellison, who agreed to haul him and Spade out to the job on Monday morning, May 26, 1958. When they arrived, they met Bud Cole, one of the superintendents. Also present were Jonas, the timekeeper, an unnamed engineer for Kiewit, and "Tex" Parmley.42 Cole asked them if the Union had sent them out; Falls told him yes. He also asked them who was to be the foreman, and again Falls acting as spokesman said, "Bill Jones." Cole then told them to go into the trailer office and sign up, which they did. While they were in the office Cole again questioned them about the Union, and said, "You guys be sure that the Union sent you; we don't want any trouble." Shortly thereafter Glenn Beckett arrived at the jobsite. According to Falls he had with him a steward's paper or report and a list which contained the names of Bill Jones, Spade, Ellison, and himself. This was the first time Falls had ever seen Glenn Beckett, though he had known one of his brothers for quite some time. Beckett in- formed those present that he had been sent out to the job as steward. He asked Falls who he was and he told him. At the same time he pointed to his name on the list. All of those on the list were present except Bill Jones, who was to be the foreman. He never did show up and "Blackie" Adkins was appointed foreman in his place.43 At this point the Trial Examiner feels that we should go back to the issue of the duties of stewards on jobs located in the Cincinnati area. His reasoning in this re- gard will be apparent below. Beckett in his testimony at the hearing herein demed that he had a list of employees when he arrived at the jobsite. He further testified that he went out to the Kiewit job pursuant to instructions given his brother in a telephone conversation with some un- known person, while he was away from home. He further testified in substance that he did not know who was to report to the jobsite on May 26, 1958; that this was the first time he had ever met either Falls, Spade, Ellison, or Parmley; and that Sauer did not appoint him steward until 2 or 3 days after the job started. We now come to Beckett's testimony on direct examination as to his duties as "project steward" on the Kiewit job. According to the record, he did not ask the men on the crew to show him their working cards and/or permits. However, if one of them pulled out his, he would do likewise. To the Trial Examiner at least the most amazing thing about his testimony was that as far as he was concerned as the steward on the job it did not make any difference to him whether they belonged to the Carpenters' Union or not, and were on a pile-driving job. He even went so far as to say that he personally got jobs for nonmembers of the Carpenters' Union to work as top men on the pile-driving crews, and that it did not make any difference to him whether "their dues or permit money was paid up." His testimony is to say the least, most shocking when considered in the light of that of other witnesses who testified on behalf of the Respondent Union. For example, let us look at the testimony of Kerry A. Locke, a member of Local No. 857, Madisonville, Ohio, which is located within the geographical jurisdiction of the District Council. His testimony follows 44 Q. Now, when was it that you say you saw Mr. Sauer on the job? A. Well, it was- Q. The first time? A. The end of that week, or the first part of the next week he came down to me and asked if I had a card. Of course, I knew who he was because he was pointed out. TRIAL EXAMINER: I can't hear you. ' See supra regarding Parmley's testimony. The record shows that Falls acted as foreman on the first shift, that is of one crew, for a day or two before Adkins was appointed " See also page 1520 of the record CARPENTERS LOCAL UNION 224, ETC. 317 The WITNESS: I knew who he was; they had pointed him out. A. (Continued.) He was our business agent. Q. (By Mr. WILLIAMS.) When was that? A. When was that? Q. When was it he had been pointed out to you as your business agent? A. Well, right at that time. I mean when he came on the job. Q. Oh. Someone had mentioned to you-Who was it that told you? A. If I ain't mistaken it was Mr. Beckett. He said, "There's Bob ; he's our business agent." Q. I see. A. And- Q. Had Glenn Beckett asked to see your card before Sauer came on the job? , A. Yes, he had. Q. And you showed it to him? A. I showed it to him. Q. Was your card in order? A. My card was in order. In passing, the Trial Examiner desires to point out that Locke got his job with Kiewit by personal contact. Like Parmley, mentioned above, he lived near the job= site and had driven by there several times before Kiewit started on the job. He was there on the morning of May 26, 1958, when Falls and the others mentioned above were hired. Although he too was hired by Zynn Wilson, the superintendent, on the morning of May 26, 1958, he could not go to work until the next morning because he had to go back home and get his tools and change his clothes. This arrangement was satisfactory to Wilson. Locke impressed the Trial Examiner as an honest witness, consequently he credits his account of Beckett's conduct as steward on the Kiewit job and discredits Beckett's testimony in this regard in its entirety. The record shows that the job proceeded without interruption until on or about June 19, 1958. On that date it was shut down because of a jurisdictional dispute between the Carpenters' Union and the International Union of Operating Engineers. What the dispute was all about is not set forth in the record. Suffice it to say that it had no direct bearing upon the issues herein. The job was shut down from June 19 to about July 2, 1958. However, during this period three incidents occurred that are of importance to all concerned. Briefly stated they were as follows: (1) The recall of three or four piledrivers to do odd jobs around the damsite; (2) Falls' trip to the union hall on the night of June 30, 1958; and (3) Falls' arrest by Cincinnati police on charges of kidnapping and armed robbery on July 1, 1958. The Trial Examiner will discuss and dispose of each issue below. The record shows that the General Counsel on several occasions during the course of his interrogation of witnesses went into matters which he contended would show animus of agents and members of the Respondent Unions and Kiewit toward Falls as an individual, that this feeling toward Falls was part and parcel of their motive in engaging in the alleged discrimination against him. An example of his contention in this regard is found in the testimony he introduced concerning the recall of four or five employees to work at the damsite after the shutdown of June 19, 1958. According to Falls he went out to the jobsite about a week after the shutdown of June 19 with "Junior" Cheek, to pick up his paycheck. While he was there he had a conversation with Zynn Wilson, superintendent on the project. In the course of their conversation, Wilson told him that a crew was coming out to work the next day. Pertinent excerpts from Falls' testimony follows below: Q. (By Mr. WILLIAMS.) What did Mr. Wilson say to you and what did you say to him? A. He said he had a crew coming out tomorrow; and I said, "why, who is coming?" And Jonas came up, he was the bookkeeper and he told us three of the names that was coming out. Q. What were the names? A. Parmley, the foreman, Blackie Atkins, and another fellow from Indiana, I don't know his name. Q. And . .. [objection by Wilson, counsel for Respondent Unions]. The WITNESS: Locke was his name. Q. (By Mr. WILLIAMS.) When he said these people were coming out what else did you say if anything? 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, I asked him was he getting a crew, he said, "No, it's up to the Union"; he said, "Sauer is sending them out, and . . [Objection by Wilson, attorney for Respondent Unions.] * * * * The WITNESS: "I told him those guys were carpenters, they weren't pile-drivers. When this was a pile-driving job, why call carpenters in, why not call people who do nothing but pile-driving. He said, Sauer is sending them out"; he said, "It doesn't make any difference to me, it's only a couple of day's work, anyway." So we left there and come back to town." [Emphasis supplied.] 45 Shortly after engaging in the above conversation with Wilson, Falls and Cheek drove back to Cincinnati. Eddie Fisher, steward on the second shift, drove back with them. After they arrived in Cincinnati, they all went up to the union hall. While there Falls engaged in a conversation with George Osterkamp. Since the Trial Examiner considers certain statements by Falls in this conversation of consider- able importance he inserts the following excerpt: Q. And what did you say to Mr. Osterkamp, and what did he say? A. We wanted to know- Q. Were you talking to Mr. Osterkamp yourself? A. No, there was Junior Cheek, and there was this fellow by the name of Fischer and Gay stayed out and Fischer and Cheek and myself went in. Q. And who did the talking to Mr. Osterkamp? A. I did most of it. Q. What did you say to him? A. We got that blue book out, one just like that. Q. Are you referring to Exhibit No. 5? A. That's right. Q. What did you say about the blue book? A. Well, I showed him in there where it states all pile drivers when there is pile driving work will go to work before a carpenter. Q. And what else did you say to him? A. We told him we wanted to go into the work and to call them and take them off of it. Q. And what did he say about that? A. He said he couldn't do it, he didn't know anything about it. Q. What else did he say? A. That's about all he said. He just said he didn't know anything about what was going on out there, he says as far as their coming in out there, he didn't know. Q. What did you say to that? A. I said "Somebody knows about it, they are coming in." Q. Did you tell him what- A. I told him exactly what Wilson had told us. Q. Did you mention Sauer's name? A. Yes; I said that Wilson told us that Sauers was sending them out, and Sauers was the business agent on that job, he handled that job. According to the testimony of other witnesses who testified at the hearing herein, Falls was in error as to Kiewit's purpose in recalling the men mentioned above to work during the shutdown. According to Locke, Parmley, and others, Kiewit called these men back to do several odd jobs including carpenter work in and around the shacks used for the storing of equipment and for the use of the employees on the job. The record also shows without contradiction that Falls was not a carpenter, as most of us understand the word. By his own admission he was strictly a piledriver and proud of it. In fact one of the witnesses, Locke, testified that he even resented being classified as a carpenter. Moreover he did not even own a kit of carpenter's tools. All of this was well known to both Superintendents Wilson and Cole before the job shutdown on June 19, 1958. In the considered opinion of the Trial Examiner Falls would have served himself better had he refrained from "badgering" Osterkamp about the recall of the above employees, in his "lecture" about the bylaws and rules of the District Council, at their meeting in the union ball when they returned from the jobsite on the afternoon of June 26, 1958. He predicates his observation on the uncontradicted and undenied testimony of Junior Cheek and Eddie Fisher. Both testified that they stopped at a couple of cafes both going and coming from the jobsite, and had a few beers. How 15 See infra for the importance of this statement. CARPENTERS LOCAL UNION 224, ETC. 319 many or where they stopped is of no concern to the Trial Examiner, the only thing about the whole affair that concerns him was Cheek's testimony that he barely re- members what went on at the union hall. Osterkamp's version of the incident which the Trial Examiner credits was to the effect that Falls "thought it was improper for the contractor on the job to start up without him personally being on it. And he got pretty loud." He further testified that Falls talked in a loud voice and used "some language that shouldn't be used in front of a girl." 46 (He had reference to the girls in the District Council's office.) After putting up with Falls' tirade for a time, he ordered him out of his office. In the circumstances the Trial Examiner feels that Osterkamp was justified in taking this action, and finds again that his conduct in expelling Falls from his office was not in and of itself evidence of animosity toward Falls as an individual. As indicated above the Trial Examiner is primarily concerned in this portion of the report with the General Counsel's contention as to animus toward Falls. Of course he has not lost sight of the major issues herein, particularly the hiring hall theory as alleged in the complaint. Insofar as the above incident is concerned the Trial Examiner finds that it has little if any bearing on this issue. He predicates his finding in this regard on the uncontradicted and undenied testimony of Parmley and Locke, both of whom worked on the job during the period in question. According to Parmley, Zynn Wilson came up to his trailer and personally asked him to come back to work. Locke testified that it was his practice to drive down to the jobsite three or four times a week and sit around and talk to whoever happened to be around. Moreover he lived nearer to the job than to downtown Cincinnati, and it was handier for him to look for his own job rather than depend on a call from the District Council's office, particularly since there was no telephone service where he lived. In the circumstances discussed and described above the Trial Examiner is con- vinced and finds that the record does not sustain the General Council's contention that the failure to recall Falls to work during the shutdown was "evidence" of animus toward Falls personally by officers and agents of the Respondent Unions and Kiewit. On Monday night, June 30, 1958, Falls went to the union hall and had a con- versation with Melvin Yorgin about his status in Local 224. According to Falls he went to the union hall on the night of June 30, 1958, and talked to Melvin Yorgin, treasurer of Local 224. He first asked for a receipt for $25 that he had mailed Yorgin as the final payment of his initiation fee. After looking through his papers Yorgin found it and noted thereon that it was good until July 7, 1958. At the same time he offered to pay his membership dues and asked to be initiated. Yorgin told him that he could not accept his membership dues until he was initiated, and suggested that he come back to the hall on the next meeting night, July 7, 1958, and be initiated. After Yorgin told him that, he turned around and started out of the hall. On his way out Sauer stopped him and told him that the Kiewit job was to start up in a few days, around July 3, 1958. Falls made no reply to Sauer and went on home. Yorgin's testimony as to the incident is about the same as Falls', except as to one important matter. According to Yorgin, Falls sent the final payment on his initiation fees, $25, to his home, and he did not complete the receipt for it until Falls pre- sented himself at his desk in the union hall on the night of June 30, 1958. He further testified that Falls did not request that he be initiated at this time and that he only offered to pay his dues into the Local, which Yorgin refused to accept because he could not accept them under the union bylaws until Falls had been initiated. The Trial Examiner saw both witnesses and heard their testimony. After due deliberation the Trial Examiner credits Yorgin's account of the incident, and finds that Falls did not offer himself for initiation into Local 224 on the night of June 30, 1958. His finding is predicated primarily on his observation that Falls at all times throughout his extensive testimony herein seemed to take the position that he was always right and the other person or persons were always wrong. As for ex- ample his "lecture" to Osterkamp 47 regarding the District Council's constitution and bylaws as applied to piledrivers during shutdowns. There he may have been tech- nically correct, but he disregarded the fact that Kiewit needed all-around carpenters for the type of work it had available, not piledrivers, as such, particularly "top men," which was Falls' job at the project. After due deliberation the Trial Examiner is not convinced that the General Counsel's contention that the incidents that occurred on the evening of June 30, 4e Quotes from Osterkamp's credible testimony. 47 See infra in regard to Falls' trip to the union hall during the shutdown from June 19 to July 3, 195'8 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1958, tend to show a concerted animus toward Falls by the officers and agents of Respondents. To the Trial Examiner at least, they show to the contrary; he has reference to Sauer's message to Falls that the Kiewit job would start up in 2 or 3 days. It seems unlikely that Sauer would have so advised Falls if he had any "animus" toward him, especially in view of Falls' standing in Local 224 at the time. Another persuasive factor to the Trial Examiner was Yorgin' s granting Falls at least 2 weeks of "grace" on his receipt or permit for his final payment on his initiation fee. This action on the part of Yorgin certainly is no indicative of animus, but to the contrary. It well may be that the General Counsel's theory in regard to "animus" toward Falls had its origin in what happened the next morning, July 1, 1958; if so, the Trial Examiner remains unconvinced as will be shown below. On the morning of July 1, 1958, Falls was arrested by Cincinnati, Ohio, police and taken to the central police station. After a few preliminary questions he was escorted to Mount Healthy precinct. Upon arrival there he was questioned quite extensively by the police, particularly as to his whereabouts the night before, June 30, 1958. The record shows that he was later placed in "line-up," and requested to place a handkerchief over his face. Shortly thereafter he was identified by Melvin Yorgin, treasurer of Local 224, as the armed bandit who confronted him and his wife as they entered their home around 11 p.m. the night before, robbed him, and then forced him and his wife to drive him downtown where he left their car and disappeared. Yorgin later signed a warrant for Falls' arrest, on charges of break- ing and entering, armed robbery, burglary, and kidnapping. He was placed in the Hamilton County, Ohio, jail where he remained until July 9, 1958. This case was turned over to the Hamilton County grand jury for consideration, which it eventually did and refused to indict him Falls' predicament in this regard is of no concern to either the Trial Examiner or the Board. Consequently he will refrain from commenting at length thereon, except to the extent that he feels that the incident had some impact on the issues herein. The only issue that the Trial Examiner can conceive of that it might have a bearing upon is the General Counsel's contention as to animus toward Falls by officials of the Respondent Unions. If this is true then the Trial Examiner again must reject his theory. The only possible connection that he can conceive of that might merit support of his theory is Falls' testimony that other members of the Union were like- wise placed in the lineup at the Mount Healthy precinct, and that it was he who was picked out by Yorgin as the guilty one 48 As the Trial Examiner sees it, Falls' quarrel is with the person who swore out the warrant against him, and the Hamilton County and Cincinnati, Ohio, authorities that incarcerated him, and not with the officials of the Respondent Unions as such. His remedy, if that is what he desires, is by way of the courts of the State of Ohio, and not by way of the National Labor Relations Board. It is interesting to note that, insofar as this record is concerned, the only person who came to see him while he was in jail was Bob Sauer, business agent for the District Council. Sauer asked him if he could be of any service to him, and at Falls' request called his wife and conveyed a message to her from Falls. It is most difficult for the Trial Examiner to attribute animus toward Falls by Sauer, in view of the ad- mitted fact that he did go to visit him while he was in the jailhouse and offered to assist him. Such reasoning is beyond the comprehension of the Trial Examiner In passing, the Trial Examiner points out that Local 224 at a regular business meeting voted to reimburse Yorgin $106, the amount that was taken from him by the armed bandit on the night of June 30, 1958 As indicated above, Falls got out of jail on July 9, 1958. What happened there- after follows below. According to Falls he called Osterkamp at the union hall either July 9 or 10, and told him he wanted to go to work. In the conversation that followed Osterkamp inquired if he was out of jail. Falls told him he was and again requested that he get him a job, and that Osterkamp replied, "Oh, boy, if you don't have that book you ain't going to work." Falls then asked him specifically if he had been replaced on the Kiewit job, and Osterkamp told him he did not know. At this point he told Osterkamp that he was going to call Kiewit and find out, and that he replied, "Go right ahead " Falls further testified that he called Kiewit the next day, July 11, 1958, and talked to Kitchen His version of his conversation with Kitchen is set forth below: Q. Did you call out at the Peter Kiewit job? A. The following day I called. 48 See page 879 of the record for Falls' testimony. CARPENTERS LOCAL UNION 224 , ETC. 321 Q. And who did you talk to? A. I talked to Jonas first , that was the timekeeper ; he gave me Kitchen. Q. Kitchen? A. Kitchen was his name. Q. And what did Mr. Kitchen say? A. Kitchen said they had been talking about me, and I was supposed to come either on the first or second shift , and he didn't know which one, and he said he would go out and talk to Glenn Beckett and find out. TRIAL EXAMINER : Who is Glenn Beckett? The WITNESS: That is the steward. Q. (By Mr. WILLIAMS.) Had stewards ever assigned you to any particular shift before that? A. No, not me. I have never heard of any steward having that say-so over any shift. Q. He said he was going to talk to Beckett about what shift you should be on? A. That's right. You see, I rode with Beckett. TRIAL EXAMINER : You what? The WITNEss: I rode with Beckett when I was working there back and forth. MT. WILLIAMS . Oh, I see. Q. (By Mr WILLIAMS.) What else did he say about Beckett, if anything? A. I asked him how would I know about it, he said, "Have you got Beckett's phone number?" I said, "Not with me. If you got it there, you better give it to me because I have it at the house ." So he gave me the phone number. Q. And was that all of. your conversation with Kitchen at that time? A. Yes; I told him I would call Beckett that night. The only reason that the Trial Examiner has set forth Falls ' testimony on direct examination in regard to his first contact with Kiewit after he got out of jail is to give all concerned a picture of the credibility problems involved herein. Falls' version as to what transpired on July 11, 1958 , was as follows . - Sometime on that date he went 'to the offices of the Board in Cincinnati , Ohio, and conversed with one of the field examiners . The record is not clear as to whom he did talk to or what time of day it was. All that the Trial Examiner gathers from the record is that whoever he talked to suggested that he get in touch with Kiewit and see if he still had a job on the project. In any event he did call Kitchen and talked to him about a job. According to Falls, Kitchen told him that he was supposed to be on either the first or second shift, but that he was not sure and would go out on the job and talk to Glenn Beckett, the steward on the project, and find out. He then asked Falls to call Beckett at his home that evening, and gave him his telephone number. At the time Glenn Beckett was living with his brother, Jewell. Falls already had his tele- phone number, because he rode back and forth to the jobsite with Glenn Beckett before the shutdown on June 19, 1959 . He called Beckett that evening and asked him about a job. Beckett told him that he would have to take the matter up with Sauer and Osterkamp, and requested that Falls call him back later. Falls waited about a half an hour or so and again called Beckett, who told him that he had talked to both Sauer and Osterkamp. According to Falls the gist of Beckett's state- ment in this regard was that "-you-aren't going in." 49 Beckett suggested that Falls ride out to the jobsite with him the next morning and see if he could get a job on his own . Falls declined Beckett's invitation, primarily because he did not want to get Beckett in trouble with Sauer and Osterkamp , whose instructions he was re- quired to follow and enforce as the project steward. Beckett admitted that Falls called him on the telephone at the time in question, but emphatically denied that he made the statements attributed to him by Falls in his testimony . He further testified that he told Falls that he would be glad to take him out to the jobsite the next morning to see if Kiewit was hiring any men, and that Falls agreed to meet him at their usual meeting place early the next morning, that be did go to the place they were to meet and waited as long as he could for Falls who never showed up; and that he drove on out to the jobsite without him. Kitchen's testimony is at odds with that of Falls in every respect except that he acknowledged that they did have a conversation about the job sometime around the middle of July. His version of what transpired follows below. In arriving at a summation of Kitchen 's version of the incident of July 11, 1958, the Trial Examiner has considered his testimony both on direct and cross-exan-iina- tion, in the light of the entire record considered as a whole, and has reached the 19 Quote from Falls' testimony 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion that it is best summed up in an affidavit he gave to a Board agent on October 8, 1958. Singularly enough the affidavit referred to was introduced in evidence by counsel for the Respondent Unions and not by the General Counsel, nevertheless the Trial Examiner deems it a credible account of the incident and of sufficient importance to this issue to insert the following excerpt therefrom below: The reason Gene Falls wasn 't put back to work is that we knew he was in jail and not available for work when we needed him . About 2 weeks after this Falls called about work and I told him I would check on it, and let him know. I didn't recall who Falls was at this time. I checked with Supt. Wilson and found out that Falls was the man who was in jail when we needed him and that all crews were filled up . Then when Falls called again, I told him the crews were filled up, he had been replaced, and we didn't need him any more. [Emphasis supplied.] After careful consideration the Trial Examiner credits Kitchen 's account of his conversation with Falls on July 11, 1958 , and discredits that portion of Falls' testi- mony that Kitchen left his trailer office and went out on the job to hunt up Glenn Beckett, the project steward, to find out if there was an opening for Falls on the pile-driving crews. To the Trial Examiner Falls' testimony in this regard is utterly fantastic for the following reasons. In the first place Kitchen was the general superintendent in charge of the project. The record shows without contradiction that he was away from the jobsite on several occasions during the first month or two of its operation for the purpose of rounding up supplies and the like, and for this reason did not have an opportunity to get personally acquainted with the in- dividuals on the job , such as Falls. This would explain his testimony that he did not "recall" who Falls was until he saw him at the hearing herein . Again, and most persuasive of all, is the fact that it would have been the normal and natural thing for Kitchen to first get in touch with the assistant superintendent on the job, Zynn Wilson, to discuss the employment situation , and not to run all over the project to find an individual piledriver , Glenn Beckett, for the purpose of discussing a problem that was primarily the concern of the assistant superintendent in charge of the job. It must be borne in mind that as of this date, July 11, 1958, Kiewit had three pile- driving crews on the first shift, two were on "floating rigs" out on the river, and one on a "truck" rig. How Kitchen was to find Beckett under such circumstances is beyond the comprehension of the Trial Examiner . Suffice it to say that common- sense alone would govern any normal person in such a situation. For this and other reasons set forth above the Trial Examiner credits Kitchen's account of the incident and discredits that of Falls. We now are faced with another question in- volving the credibility of the witnesses who appeared and testified at the hearing herein . It should be obvious to all concerned that the Trial Examiner has reference to the conversations between Falls and Beckett on the night of July 11, 1958. This is a most difficult question for either the Trial Examiner or any other trier of the fact, since neither of them impressed him as honest and forthright witnesses. Be that as it may, he is faced with ,the task and he shall decide the question in the light of the record considered as a whole. It must be remembered that there is nothing new or novel about triers of the facts being placed in such a predicament , particu- larly when one stops to think that jurors meet with and dispose of such problems daily in courts across this land of ours . Nor is there anything unusual about a trier of the facts crediting part of a witness ' testimony and discrediting it as to other matters at issue. The rule in this regard was well stated ' by Judge Learned Hand in N.L.R.B. v. Universal Camera Corporation , 179 F. 2d 749 (C.A. 2): It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. In the circumstances discussed and described above, the Trial Examiner credits Falls' account of his conversation with Beckett and finds that the latter made the statements attributed to him by Falls as to his conversations with Sauer and Oster- kamp. His finding in this regard is primarily predicated on findings he has made above, particularly, ( 1) the duties of stewards as set forth in the constitution and by- laws of the District Council ; (2) the Taylor incident considered in the light of the duties of the steward on the job when it occurred ; (3) Sauer's testimony in regard to the duties of the stewards as set forth above; and (4) the fact that as of July 11, 1958, Falls had not yet been initiated into Local 224. Another factor given consideration by the Trial Examiner in resolving the credibility issue was the fact that Beckett was a longtime member of the Carpenters ' Union, and had served as steward on many occasions over the years . In the circumstances the Trial Examiner concludes that it was the natural procedure for him to follow in view of Falls' CARPENTERS LOCAL UNION 224, ETC. 323 "position" at the time, which the record indicates was a matter of common and notorious knowledge. On Monday evening, July 21, 1958, Falls went to the union hall for the primary purpose of paying his dues and cleaning up his status with Local 224. He was accom- panied by Malcolm Isaacs, a friend of some 4 years' standing. Isaacs was not a member of the Carpenters' Union, but of the Upholsterers' Union, and was employed at times material herein by Manual Arts Furniture Company, Cincinnati, Ohio, as a machine operator. According to Isaacs' credible testimony, he and one Herbert Norris went to the union hall at the request of Falls to witness everything that tran- spired during his visit there. The record shows that they arrived at the union hall "around 7 or 7:30 p.m., on the evening of Monday, July 21, 1958, which was a regular meeting night for Local224. Falls' account of what transpired after they arrived at the union hall on the evening of July 21, 1958, was in substance as follows: He walked up to Yorgin, who was seated at a table, and laid down his receipts for his initiation fee,50 $6.35 in cash to pay his current dues, and his certificate from the examining board, and said to Yorgin "I came to get my book," and he (Yorgin) turned his back and said, "I can't do nothing for you," and walked away.51 Isaacs' testimony as to what transpired at the union hall is in the considered opinion of the Trial Examiner a much clearer account of the incident than that of _ Falls. For this and other reasons, which will be apparent below, the Trial Examiner is setting forth herein the following excerpt therefrom: Q. You didn't hear it all? A. No, they might have said something I didn't hear. Q. And you didn't hear Mr. Yorgin tell Mr. Falls he would have to be initiated before- A. Yes, I heard that. Q. Yorgin told Mr. Falls he would have to be initiated before he could take his dues, isn't that right? A. That's right. I heard that. [Emphasis supplied.] Q. And, then, right after that you left, didn't you? A. No, he went up to the window. Q. He went up to the window? A. And, then, we left. Q. And then you left? A. Yes. Q. You didn't stay for the meeting, did you? A. No, he didn't stay for the meeting. Q. No. And, of course, he had no intention of staying for the meeting did he, when he went down there? I mean he had you with him. You wouldn't be admitted to the meeting, would you? Mr. WILLIAMS: Objection, as to his intent. The WITNESS: I wouldn't know about that. TRIAL EXAMINER: Wait a minute. Overruled. It is cross-examination. Q. (By Mr. WILSON.) But did you go with him with the idea of going to the meeting with him? A. No. Q. You just went down there to witness him attempting to pay his dues and if they wouldn't take his dues to leave, is that right? A. That's right. Q. That's right? A. That's right. Q. And that's the reason you went down and that's why Mr. Falls wanted you to go down, is that right? A. No, he just asked me if I would go. Q. That's why he asked you to go down? A. Yes. Yorgin admitted that he did not accept Falls' money, and stated that he told Falls that he could not accept the $6.35 dues money for the reason that Falls had not yet been initiated into the Local. 60 See General Counsel's Exhibits Nos 16, 17, 18, and 19. 51 Quotes are from Falls' credited testimony. 614913-62-vol 132-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the foregoing the Trial Examiner finds that Yorgin did not accept Fails' tender of dues for the same reason he had previously refused to accept them on June 30, 1958, which was because under the Local's bylaws no person can pay dues to the Union until after he has been initiated. Falls was well aware of the Union's rule in this regard and had been for years. Moreover, his recollection had been refreshed by, Yorgin himself less than a month before, on June 30, 1958. As the Trial Examiner sees it all that Falls had to do was to wait around the union hall a few minutes, attend the regular union meeting, and present himself for initiation. For some unknown reason he again chose to do otherwise, and left the hall before the meeting opened. Why he would pull the same "stunt" twice, so to speak, in less than a month is beyond the comprehension of the Trial Examiner. As the Trial Examiner sees it, all of the testimony as to Falls' deliberate disregard and disrespect for the Union's constitution and bylaws is in the final analysis, insofar as the issues herein are concerned, much ado about nothing " Neither the Trial Examiner nor the Board is concerned (and they should not be) with matters that are strictly internal affairs of labor organizations. Surely the protocol surrounding the initiation of an applicant for membership and when and how he pays his dues are strictly internal union affairs (except under certain abnormal situations which are not present here), 52 and not subject to Board supervision, and regulation, under the Act or otherwise. Further evidence that Falls himself was well aware of the fact that he had to be reinitiated into Local 224 before Yorgin could "legally" accept his tender of dues is found in his own testimony. On cross-examination he testified as follows: Q. Now, you testified that you presented yourself for initiation in Local 224 twice in 1958? A. Twice. Q. Yes. Could you give me the dates? A. June the 30 and July-around the 22nd. Q. 22nd. And it was on July 22nd that Isaacs was with you? A. That's right. Q. And I believe your testimony was that Isaacs is not a member of the union? A. That's right. Q. And you were, however, initiated in March of 1959; is that correct? A. March of '59; that's right. Q. And the union would accept no dues from you nor would they give you a book until you were initiated; is that correct? A. Well, they wouldn't even-they wouldn't give me nothing, they wouldn't even give me the book; we tried. Q. That's right. They would not give you the book. A. That's right. Q. And they would not accept dues from you until you were initiated, is that correct9 When I say "dues," I mean other than those initiation fee payments. A. That's right, until I paid my initiation fee. Q. Yes. You paid your initiation fee, then you wanted to pay your dues. You had to be initiated before you could pay the dues; is that correct? A. That's the way that is, yes. Q. Yes So then from July of 1957 until March of 1959 no dues were paid to the union other than the $110 initiation fee? A. That's right. When this testimony is considered in the light of the entire record, the Trial Ex- aminer is again convinced that the General Counsel's contention as regards animus toward Falls by Yorgin, Sauer, and Osterkamp is without merit, and he so finds. The most that can be said for his contention is that each of the foregoing took their positions with the Respondent Unions seriously and were at all times primarily con- cerned with the enforcement of the constitution and bylaws of their respective organi- zations, regardless of whether they were in conflict with the plain language of the Act or not.53 This is evidenced by the rigid enforcement of the illegal union-security clause in their "oral" agreement and/or "arrangement" with Kiewit and the refusal of the employees on the second shift to work with Taylor on the Kiewit job and the Indian Hills School incident, both of which have been discussed and disposed of above We now come to Falls' testimony regarding a second telephone conversation with Kitchen about either the latter part of July or August 1, 1958. Here again the record 6= The Trial Examiner has reference to situations where initiation fees and dues are exorbitant 53 See infra. CARPENTERS LOCAL UNION 224, ETC. 325 is most confusing.54 In the first place Falls' testimony on direct regarding a con- versation he had with Kitchen on July 11, 1958, which was a few days after he got out of jail, was to the effect that Kitchen told him that he had been replaced and that there were no openings on either the first or second shifts. This conversation has been discussed at great length above and disposed of. On cross-examination Falls was confronted with three affidavits he gave a Board field examiner, dated "August 4, '58, one on September 22, '58, and the other on February 24,1959 . . " 55 The gist of his testimony before the Trial Examiner in this regard was that the affidavits were in error as to his conversations with Kitchen, and that his testimony at the hearing herein was correct. From all of the testimony in regard to Falls' conversations with Kitchen, the Trial Examiner finds that Falls did call Kiewit's offices at the jobsite and was informed by Jonas, the timekeeper, that he had been replaced and that at the time there were no pile-driving jobs available for him on any of the shifts. On or about July 29, 1958, Falls drove out to the Kiewit jobsite with Malcolm Isaacs. Upon arrival they went into the office and talked to Jonas, the timekeeper. They rode out in Isaacs' car. According to Isaacs' credible testimony, Mrs. Falls paid him $3 gasoline and expense money, to take Falls out to the jobsite for the purpose of witnessing everything that occurred and was said by the persons Falls interviewed on the trip. In view of the confused state of the record insofar as Falls' testimony is concerned both on direct and cross-examination, the Trial Examiner relies on Isaac's account of the incident, which is clearer and more to the point as to what actually transpired on the trip. According to Isaacs, they arrived at Kiewit's offices at the Shiloh damsite at around 8 a.m. Shortly thereafter, Jonas, the timekeeper, reported for work. Falls told him that he wanted to see Assistant Superintendent Zynn Wilson about going to work. Jonas told him that Wilson was not there, but was up at the Lunken Airport, which was some few miles east of Cincinnati, Ohio. Falls then talked to Jonas about a job. Jonas told him that "it wasn't up to him to let him go to work, because if he would let him go to work the guys would no doubt walk off the job." 56 They re- mained at the damsite a very short time and then drove to the Lunken Airport, for the primary purpose of seeing Wilson. When they arrived at the airport, they found several of Kiewit's employees unloading a box of tools and other equipment. They talked to some of the employees and found out that Wilson had left the airport temporarily on business. However, Falls did talk to Glenn Beckett, the project steward, about getting his job back at Kiewit. The gist of Beckett's reply was that he (as the project steward) "couldn't let him go to work .. . if he went to work those guys would walk off," which the Trial Examiner interprets to mean that if he, Beckett, approved of Falls going on the job, then the other employees would walk off the job as they did in the Taylor incident cited above. After receiving Beckett's answer, they drove back to Cincinnati, Ohio. The Trial Examiner has considered Isaac's testimony as to the above incident and Beckett's testimony to the effect that he told Falls to wait and see Wilson about a job, and credits Isaacs' account of the incident in Coto, for reasons set forth above as to the credibility of both Beckett and Isaacs. Falls further testified that on or about August 1, 1958, he called Kitchen again and asked him about a job, and that Kitchen told him that he would have to check up on the situation and requested that he call him back. A short time later he again called the office and talked to Jonas, the timekeeper. Jonas told him that Kitchen had left and told him to tell Falls that he had been "replaced." 57 On August 4, 1958, Falls went to the Ninth Regional Office and filed the charge in Case No. 9-CB-501, and on February 24, 1959, filed the charges in Case No 9-CB-621. 64 See the record, pages 995 to 1000 RS Quotes from the record, page 999 The affidavits in question were not offered in evi- dence by any of the parties at the hearing herein They were only used to "iefresh" Falls' "recollection " 56 Quotes from Isaacs' credible testimony 57 At this point the witness, Falls, testified as to certain statements made by Jonas rela- tive to the "Taylor incident," that is, the "bad water" situation Since this testimony was not a part of Kitchen's message to Falls, which was relayed by Jonas, but was, in the considered opinion of the Trial Examiner, Jonas' personal opinion as to why the men on the night shift walked off the job, the Trial Examiner granted a motion to strike this portion of Falls' testimony In any event, the Trial Examiner has made it finding above as to this incident which is predicated on the testimony of other witnesses 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings as to the Kiewit Case From all of the foregoing the Trial Examiner concludes and finds that Respondent Ohio Valley District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, named in Case No. 9-CA-621, by and through its agents en- gaged in unfair labor practices, "affecting commerce" as defined in Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. The Trial Examiner predicates his findings upon the activities of George Osterkamp, recording secretary of the District Council, Robert Sauer, business agent for 13 of the Locals constituting the District Council, and Glenn Beckett, project steward on the Kiewit job. The Trial Examiner's conclusion herein is predicated upon findings which he has made above. Summed up they are as follows: The Trial Examiner has found above that representatives of the District Council and Kiewit met at the Gibson Hotel in Cincinnati, Ohio, on or about May 1, 1958, for the purpose of working out an agreement as to the furnishing of piledrivers and other craftsmen for the construction of a cofferdam near New Richmond, Ohio, which was a preliminary job to the erection of the Shiloh Dam for the United States Engineers. At that time there were other pile-driving jobs in the geographical area of the District Council, such as for example the Gest Street street job which was under construction by Raymond International, Inc. In addition there were two jobs on the Ohio River, which were nearing completion, where a number of piledrivers were employed. While it is true that these jobs-the Greenup job "up-river" and the Markland job "down-river" from the Shiloh Dam-were outside the geographical jurisdiction of the District Council, nevertheless they posed a problem to the parties insofar as manpower was concerned, for the simple reason that there were only 30 or 40 piledrivers in the geographical area of the District Council. All of the parties realized this problem when they met on May 1, 1958. The upshot of the meeting was that the District Council agreed to furnish all the piledrivers it could for the job, and Kiewit was permitted to hire whom it pleased from the "river bank." That Kiewit did so is amply demonstrated in the record. The gravamen of the "oral agree- ment" or "understanding" that was reached between the parties at the May 1, 1958, meeting was that all the piledrivers, including those hired by Kiewit, were required to be either a member in good standing of one of the Locals that made up the Dis- tiict Council, or have a "permit" or "referral" slip from the District Council in order to retain their jobs. That this is so is amply demonstrated in the record, particularly in the case of Taylor, which has been discussed and disposed of above, and by the conduct of Sauer and Glenn Beckett (in his capacity as project steward) at the jobsite, and Osterkamp at the offices of the District Council. This agreement, and its actual enforcement, was clearly violative of Section 8(b) (1) and (2) and 8(a) (1) and (3) of the Act.58 Insofar as Falls, the Charging Party herein, is concerned, the Trial Examiner is convinced and finds that he was refused reemployment by Kiewit on or about the latter part of July 1958, and not on July 11, 1958,59 as alleged in the complaint, be- cause he was not a member in good standing in Local 224. He predicates his finding on the following: (1) The record shows that he applied for a job on or about July 29 and August 1, 1958, and was advised by Kitchen through Jonas, the timekeeper, that he had been replaced. The record further shows that during the latter part of July 1958 Kiewit was hiring employees who qualified as carpenters and welders, for example Estep on July 16, 1958, a "carpenter-welder," and Messik, a "carpenter" on July 23, 1958; 60 (2) Beckett's statements to him on or about July 11 and 29, 1958, to the effect that he could not get a job until he got his dues straightened out, all of which has likewise been discussed and disposed of above; (3) there were jobs available on or about July 29 and August 1, 1958, that Falls was qualified as a piledriver to perform; and (4) the admitted fact of the great scarcity of qualified piledrivers in the Cincinnati, Ohio, area at times material herein. In the circumstances the Trial Examiner finds that the District Council by its agents, Osterkamp, Sauer, and Glenn Beckett, caused Kiewit to refuse to rehire Falls for pile-driver work at its project at the Shiloh Dam, near New Richmond, Ohio, because he was neither cleared for nor sponsored by the Respondent District Council, for such employment. es The Employer, Kiewit, is not named as a Respondent herein. 59 The Trial Examiner has indicated above that there were no jobs available on July 11, 1958, and has credited Kitchen's testimony in this regard. 80 See General Counsel's Exhibits Nos 3 and 4 The record clearly shows that the word "carpenter" is an all-inclusive word as used herein, and uscludes piledrivers The record also shows that there was a welder on each pile-driving crew CARPENTERS LOCAL UNION 224, ETC. 327 Now, to the ultimate disposition of the Kiewit case. First let us look at the charge in Case No. 9-CB-621. The charge upon which the complaint in this case is predi- cated is dated February 24, 1959. In answer to Respondent's motion to make more definite and certain, filed with the Ninth Regional Office of the Board on April 22, 1959, the General Counsel stated as to the date of the alleged illegal oral exclusive hiring agreement that "the said agreement was entered into on or about May 1, 1958, its effective date. " The Trial Examiner has so found above. The complaint in Case No 9-CB-621 alleges that Gene Falls, the alleged discriminatee, was re- fused reemployment by Kiewit on or about July 10, 1958, because he was neither cleared for nor sponsored by Respondent, for such employment.61 The Trial Exam- iner has found that either July 29 or August 1, 1958, was the date Kiewit refused to rehire Falls. In the circumstances found above the Trial Examiner recommends that the com- plaint in Case No. 9-CB-621 be dismissed for the reason it is predicated upon a charge filed more than 6 months after the alleged unfair labor practices occurred, and thus is barred by virtue of Section 10(b) of the Act. The Trial Examiner is not unmindful of the General Counsel's contention as to the allegations relative to the illegal hiring arrangement "that such alleged violations of the Act are continuing violations and thus Section 10(b) thereof cannot bar the issuance of the Complaint in respect to such allegations." 62 There no doubt was merit to the General Counsel's contention at the time it was made, and in fact throughout the hearing herein in view of past Board and court decisions. However since the hearing herein closed, the Supreme Court of the United States has ruled in the Bryan Manufacturing Company case that Congress meant what it said when it enacted Section 10(b) of the Act. The Court, speaking through Mr. Justice Harlan, had this to say, inter alia, "As expositor of the national interest, Congress, in the judgment that a six-month limitations period did `not seem unreasonable' H. Rept. 245, 80th Cong. 1st sess., p. 40., barred the Board from dealing with the past conduct after that period had run, even at the expense of the vindication of statutory rights. `It is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute. That policy cannot be defeated by the Board's policy . . ' Colgate Co. v. Labor Board, supra at 363. Cf. Southern S.S. Co. v. Labor Board, 316 U.S. 31, 47." 63 The disposal of the case in regard to Local 224 has caused the Trial Examiner grave concern, for reasons which will be apparent below. In the first place the General Counsel alleged in his complaint that Local 224 was a labor organization within the meaning of the Act. The Trial Examiner has found above that it is such, and over the objections of counsel for the Respondent Unions has further found that it is an "entity," that is, a "person," a "being," that exists, and as such is liable for its conduct. That being so let us look at the record. To begin with Local 224, by the plain language of the International's constitution and bylaws was forced to become a member of the District Council. While it did not lose its identity as a "person" nevertheless certain rights were taken from it and lodged in the District Council, such as negotiating with and dealing with employers in the geographical area of the District Council. This function was lodged in the District Council, who acted through its recording secretary, George Osterkamp, who was elected to his job by the membership of the 17 locals that constitute the District Council, and three busi- ness agents, Robert Sauer, Russell White, and Russel Austin, who were elected by the membership of the 13 locals in the District Council who were not authorized by the International to have their own business agents. Hence all of the business with employers in the area of the District Council was in the hands of the elected officials set forth above. Insofar as the Kiewit case is concerned there is no substan- tial evidence in the record that any official, officer, or agent of Local 224 had any dealings with either Kiewit or any other employer at times material herein. On the other hand, the record clearly shows that Osterkamp, Sauer, and Glenn Beckett, the project steward, in all of their dealings with Kiewit, acted solely as agents of the District Council and not as agents for Local 224, or the other locals that made up the District Council, as separate and distinct entities The only evidence (which the Trial Examiner considers far from substantial) that might possibly tie Local 224 to the conduct of the District Council, is that of Falls regarding his arguments with Yorgin over his dues. But this evidence must be considered in the light of not only m Quotes from the combined complaints-Cases Nos 9-CA-501 and 9-CB-621 es From the General Counsel's "Suggestions to Respondent's Separate Motions to Dis- miss Complaint and To Make More Definite and Certain" at p. 4. B Local Lodge No 1424,, International Association of Machinists, AFL-CIO et al v. NLRB.862US 411 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yorgin's statutory duties under the District Council's constitution and bylaws but the fact that the treasurer of each of the locals that make up the District Council are similarly bound. In other words, if Yorgin's conduct as discussed, described, and disposed of above was illegal, then why was Local 224 singled out as a Respondent? Why not name the treasurers of all 17 locals as agents that engaged in unfair labor practices? In the considered opinion of the Trial Examiner it was the District Council through its elected and appointed agents that committed the unfair labor practices, not Local 224. The Board has had this problem before it on other occa- sions. For example, in District Lodge 94, International Association of Machin- ists and its affiliate Local Lodges 1186 and 1484, AFL-CIO (Consolidated Rock Products Company), 126 NLRB 1265, a similar situation was before it. In that case the agreement in question was between a group of employers and District 94, and Locals Nos. 1186 and 1484. There District Lodge 94 entered into the agreement for and on behalf of the two locals. The charging party was a member of Local No. 1186. There was no evidence that Local No. 1484 had engaged in any of the alleged unfair labor practices even though it was a part of the District setup. The Board said: In view of the fact that the record fails to disclose any evidence showing that Local 1484 engaged in any conduct which contributed to the discrimination against Karstensen we do not adopt the Trial Examiner's recommendation that Local 1484 be required jointly and severally to make whole Karstensen for any loss of pay he may have suffered as a result of the discrimination against him, nor do we adopt any other of his recommendations relating to such discrimination. As the Trial Examiner sees it the Board's reasoning in the above case is applica- ble here for the following reasons: (1) The Trial Examiner has found above that the District Council acting through its agents committed the unfair labor practices; (2) there is no substantial evidence in this record that Local 224 as an entity or by any of its agents committed any of the alleged unfair labor practices; (3) the mere fact that Falls was an applicant for membership in Local 224 is not controlling; and (4) if Local 224 is liable for the conduct of the officers and agents of the Dis- trict Council then why were not all of the locals that constitute said Council like- wise named as Respondents? It must be remembered that Glenn Beckett, the pro- ject steward, was not a member of Local 224, but of Local No. 868, Chevoit, Ohio. Hence if Local 224 as an entity is liable for the unfair labor practices of elected and appointed agents for the District Council, then not only Local No. 868, but each and every other local in the District Council, is likewise liable for their con- duct. Assuming the Trial Examiner's reasoning in this regard to be correct, then it would be possible for a person who felt he had been discriminated against in violation of the Act to select any local in the District Council he cared to as a Respondent. ' In the circumstances discussed and found above the Trial Examiner will recom- mend that the complaint in Case No. 9-CB-501 be dismissed in its entirety, on the ground that the General Counsel has not shown by a preponderance of the evidence that Local 224, as an entity, by and through its agents has engaged in the unfair labor practices alleged in the complaint. The Raymond Case On May 26, 1959, the Regional Director for the Ninth Region issued his com- plaint and order consolidating cases in the above matter, in which he alleged, inter alia, the following: 84 3. The Respondent Employer is now, and has been at all times material hereto an Employer as defined in Section 2(2) of the Act and engaged in "com- merce" and or in operations "affecting commerce" as defined in Section 2, Sub- sections (6) and (7) of the Act respectively. 4. The Respondent Union is now, and has been at all times material hereto, a "labor organization" as defined in Section 2, Subsection (5) of the Act. 5. Robert Sauer, Business Agent for Ohio Valley Carpenters' District Coun- cil, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Council, and George Osterkamp, Secretary of said Council, are and, at all times material hereto, have been agents of the Respondent Union. 6. On or about September 5, 1958, the Respondent Union, by and through its agents Robert Sauer and George Osterkamp and others, whose names are unknown to the Regional Director, attempted to cause and caused the Re- " See infra as to Respondents' answers. CARPENTERS LOCAL UNION 224, ETC. 329, spondent Employer to discharge the Charging Party from his employment at the City Disposal Plant in Cincinnati, Ohio, at which time he had been em- ployed by the Respondent Employer for less than, thirty days. 7. By the acts and conduct alleged above, Respondent Employer has en- gaged in unfair labor practices "affecting commerce" as defined in Sections 8(a)(1) and (3) and Section 2, Subsections (6) and (7) of the Act respec- tively and Respondent Union has engaged in unfair labor practices "affecting commerce" as defined in Sections 8(b)(1)(A) and (2) and Section 2, Sub- sections (6) and (7) of the Act respectively. As indicated above, the complaint herein was predicated upon charges filed by Gene L. Falls, the same individual who filed the charges in the Kiewit cases which the Trial Examiner has disposed of above. A resume of the testimony adduced at the hearing herein regarding the incidents that led up to the filing of the charges and the issuance of the complaint follow below. The record shows that Falls was hired by Raymond on September 4, 1958, under the following circumstances. At the time in quesiton Raymond was engaged in pile-driving operations in connection with the construction of a sewage disposal plant for the city of Cincinnati, Ohio, at Gest and Evans Streets in Cincinnati. On the morning of September 4, 1958, one of the piledrivers on the job, Peter Catan- zaro, quit work at around 9:30 a.m. Bernard T. Phelan, Raymond's superintendent in charge of the job, asked Vincent Gentile, fireman on the pile-driving crew, if he knew where they could get a piledriver immediately. Gentile told him about Falls being available, and Phelan instructed him to get in touch with him at once. Gen- tile did so, and Falls arrived at the job around noon and was hired as a leadman. On this job he worked about 75 feet above the ground. The importance of this observation will be apparent below. As indicated above Russell White was the business agent for the District Council, in charge of its affairs in the territory west of Vine Street in Cincinnati, Ohio. The Raymond job was in his territory. On this particular day, September 4, 1958, he was sick in the hospital, and Robert Sauer, who has been referred to above, was temporarily handling matters in the area for the District Council. Sauer's regular ,territory was east of Vine Street. Shortly after the piledrivers went back to work after their lunch hour, Sauer drove up to the job. He got out of his car and walked to the bank, and motioned to the men to quit work. At this time Falls was "up in the leads" about 70 feet. The crew quit work and all walked up to Sauer, except Falls who was still up in the air. Later on Gene Ward, who was also up in the "leads," was requested to come down, which he did and joined the crew in their conversation with Sauer. As the Trial Examiner interprets the record Falls stayed up in the leads; primarily because John Ellison, one of the piledrivers, had "motioned" that he did not want him. However, Falls came down out of the leads a short time later and talked to Harold Ellison and some of the other members of the crew. At no time did Falls talk to Sauer during the incident. The record shows that Sauer shut the job down for the following reasons. According to Sauer the District Council had received complaints about the con- duct of one Vincent Gentile, a fireman on the pile-driving crew, in usurping the duties of the foreman on the job, Albert Shannon. The gist of the complaints was that Gentile was "jumping up and down" and giving signals to the men on the crew, which was the foreman's job. The members of the crew resented Gentile's activities, not only because it was the foreman's job, but primarily because it created a hazard- ous situation in that only experienced piledrivers are qualified to give signals to the crew. This is understandable when one considers that some of the crew are up in the leads, 70 to 75 feet in the air, and others are out of their sight. Consequently the equipment must be moved around very carefully. Another reason was that in the Cincinnati area, there had been-some fatal accidents as a result of careless signaling, which was well known to the piledrivers in the area. No one, including the General Counsel, makes the contention that it was illegal for Sauer to stop the operation, to check on and enforce a safety regulation. It was what happened during his interview with the piledrivers and their foreman, Albert Shannon, that concerns us herein, as will be apparent below. There are several accounts of what transpired after Sauer arrived at the job. After careful consideration the Trial Examiner is convinced that the testimony of Vincent Gentile is the clearest and best account of the affair, particularly so since he personally was responsible for Sauer's trip to the jobsite. According to Gentile, Sauer got out to the job around 2 p.m. on the afternoon of September 4, 1958. At that time Gentile was standing alongside Shannon, and was signaling the crew. The reason he advanced for giving the signals, which ad- 330 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittedly was the duty of the foreman, was that Shannon was "kind of old" and "he couldn't see very well," and was in,his opinion giving the wrong signals. At this point he took over the signaling. There was nothing new or novel about his assum- ing Shannon's duties in this regard. The record clearly shows that he had done so many times in the past, and as indicated above this was the reason for Sauer's trip to the jobsite. While he was signaling the crew, he happened to glance up to the bank, and he saw Sauer standing there. At the same time he saw Sauer motion to the crew to quit and come down. After the rig shut down Gentile and Shannon walked over to Sauer, who asked them where the superintendent, Phelan, was. Gentile told him that he "didn't know." He asked Sauer what was wrong, and the only answer he could get out of him was "others doing our work" and "gave me as rather smug look like he was mad or something." 65 Sauer then turned to Shannon, asked to see his "permit." Shannon pulled out his book and/or permit and handed it to Sauer, who looked it over, and said to Shannon. "Well, you are not even supposed to be working here, your permit is not even paid up." Shannon made no reply, and Sauer walked away. Gentile changed his clothes and went on home. Shortly after he got home Superintendent Phelan called him about the job. His testimony in this regard is very interesting and in essence sums up the testimony in the record as to the pur- pose of Sauer's trip to the jobsite on September 4, 1958. Consequently a pertinent excerpt therefrom follows below: The WITNESS: Bernie Phelan. He is the superintendent. He called me, he says, "Dago," he says, "you are a troublemaker." I says, "What's the matter now, Bernie?" He says, "Well, Saurs [sic] says you were down there doing their work." I said, "What's the matter now?" He said, "You know how you get off the rig and help some of the guys in a pinch and that?" I says, "Yes." He says, "If you do it any more, I am going to fire you." Well, I got a wife and four kids, so I started sitting back on the rig for a couple days; so Mr. Phelan, he says to me, "Now be sure," he says, "and get ahold of Gene Falls." I said, "Don't you have his number'?" He says, "No; you go over and tell him to come into work tomorrow." So I went in and told Mr. Falls that we was going back to work, and so we went the next morn- ing and as far as I know everything was all right. And the next afternoon they laid Gene off. Gentile got in touch with Falls, and they both reported for work the next morning. According to Gentile he talked to Shannon the next morning about the incidents of the preceding day. His testimony in this regard was as follows: The W1TNESs: I asked Mr. Shannon the next day what it was, and why they shut the job down, he says, "Well, I don't know," he says, "I had to go down there and straighten out my book." He says, "I had to pay $16 or something like that, I don't remember, before they let me go back to work." Gentile impressed the Trial Examiner as an honest and intelligent witness, with a lot of "bounce" and energy, and just the sort of a person who would engage in the conduct attributed to him. Consequently the Trial Examiner credits his testimony in its entirety, and finds that the events of September 4 and 5, 1958, occurred just as he described them above. Shannon's account of what transpired on the afternoon of September 4, 1958, is about the same as Gentile's, which has been set forth above. Shannon further testi- fied that he and Superintendent Phelan went to the District Council's office shortly after the job shut down, and met with Sauer. While they were there he paid up his dues, the 2 months he was behind at $6 per month and $4 overtime assessments, or a total of $16. He was a member of Local 578, Chicago, Illinois. In the course of his testimony he said that he told Sauer when he was at the jobsite that one of the pile- drivers on the job, James Spade, had told him around June 1, 1958, that he did not have to have a permit to work in the area, but that Sauer said "Well, you do." Sauer's account of the September 4 incident insofar as his conversation with Shannon was to the effect that he asked him about dues that he owed his home local, and not regarding permit to work on the Raymond job. However he did tacitly admit that "I think he did secure a permit" while he was in the District Council's office on that date.66 Bernard Phelan, the superintendent on the "Raymond" job, was called as a witness by the General Counsel. The gist of his testimony insofar as the events of Septem- 05 See infra regarding Phelan's testimony. 68 Quotes from Sauer's testimony CARPENTERS LOCAL UNION 224, ETC. 331 ber 4 and 5, 1958, was as follows: First let us look at his testimony as to the pile- driving crew that was employed by Raymond at times material herein. He testified that at the time we are concerned with Raymond had one pile-driving rig in operation and the crew consisted of eight men: an engineer, a fireman; a foreman, and four piledrivers. His testimony regarding his conversation with Sauer on the day the job was shut down on September 4, 1958, is, in the considered opinion of the Trial Ex- aminer, important for reasons which will be apparent below, particularly in regard to a position taken by the General Counsel in his brief regarding a matter that was not alleged in his complaint. This "issue" will be disposed of below. Phelan's account of the meeting with Sauer at the District Council's office on the afternoon of Sep- tember 4, 1958, follows below: Q. Now, I want you to direct your attention to the afternoon of September 4 of '58 and tell me if you had a conversation with Robert Sauer about this job, this job with Gest and Evans. A. I did. Q. And where did that conversation take place? A. In Mr. Sauer's office, first by telephone to tell him I was coming, and then in his office. Q. Who else was present at that time when you talked to Mr. Sauer in his office? A. Mr. Shannon. Q Was Mr. Shannon present) A. Yes, sir. Q. At the time you were talking to Sauer? A. Yes, sir. Q. The same room? A. Yes, sir. Q. And what did you say to Mr. Sauer there and what did he say to you9 A. Well, I guess I went in a little bit mad and asked him why he shut my job down. He said there was a couple of reasons why he shut it down, the main one was the fireman was always interfering and doing the pile drivers' work, and giving signals to the engineer, which was-which I knew was true because he had done it before; and he said Mr. Shannon was behind in his dues. TRIAL EXAMINER: That's the witness that preceded you? The WITNESS: Yes, sir. Q (By Mr. WILLIAMS.) What did you say to-did you say anything to Mr. Shannon about making any payment to the union? A. I told him if he owed the union any money whatsoever, to pay it. After careful consideration the Trial Examiner credits Phelan's account of what transpired at the meeting in the District Council's office with Sauer on the afternoon of September 4, 1958. On the next day, September 5, 1958, Falls worked until about an hour before quitting time, when Shannon called him off the job and told him that he was being laid off. As the Trial Examiner interprets the record the reason given Falls for his layoff was lack of work. At the same time another member of the crew, Charles Pitz, a teamster, was also laid off.67 Phelan testified that Falls and Pitz were laid off for "lack of work." In the course of his examination he was interrogated quite extensively by the General Counsel about certain payrolls for pay periods material herein. The Trial Examiner has carefully considered the payrolls in the light of Phelan's testimony and the entire, record regarding the "make-up" of a pile-driving crew. From this he is convinced that the actual crew of piledrivers remained the same from September 1958 to the completion of the job, sometime in the latter part of October 1958. At the time Falls was hired they were moving the rig under high-tension lines, and this was a difficult task and required the service of a "lead" or "top-man," like Falls, to see that the rig cleared under the wires without mishap, or injury to the crew. After the rig had been moved, it would seem that normal operations would resume, with the regular crew, as contended by the Respondent Raymond.68 On or about September 8, 1958, Falls went to the Cincinnati, Ohio, office of the Ohio Bureau of Unemployment Compensation and filed a claim for unemployment compensation. As the Trial Examiner interprets the record he told the examiner who took his claim that he had been laid off by Raymond because of "lack of work." 67 Pitz was recalled a few days later. E8 See supra as to what constituted a regular crew on the Raymond job See also Re- spondent Raymond's brief at page 5 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about September 17, 1958, Falls went back to the unemployment com- mission to check up on his claim. He talked to the examiner to whom it had been assigned, Richard Wherley. The disposal of the testimony adduced at the hearing herein by the General Council as to what transpired during their conversation and thereafter presents to the Trial Examiner the most aggravating and exasperating issue he has ever been confronted with in almost a decade and a half of experience in such matters. That this is so will be amply demonstrated below. Let us first consider the testimony of Richard Wherley. At times material herein he was employed by the Ohio Bureau of Unemployment Compensation, as a claims examiner. He worked for the Bureau until June 19, 1959, at which time he resigned to take a job in the office of the clerk of court, Hamilton County, Ohio. At the time he left the Bureau he had been employed by it for approximately 11/a years. He testified in substance that on September 17, 1958, Falls came to his desk to discuss his claim for unemployment compensation. Simply stated his duties were as follows: Q. . . . What was your title as an employee? A. I was a claims examiner for the Bureau of Unemployment Compensation. TRIAL EXAMINER. You have got to establish that. Q. (By Mr. WILLIAMS.) And what were your duties for the claims examiner for the Bureau of Unemployment Compensation? A. My duties were to make decisions whether to make various benefit pay- ments to claimants, and in doing so, I would interview the claimant and the employer and in most cases both. Q Well, then, you regularly contacted employers by phone and otherwise to find out whether or not various unemployment claims were valid; is that correct? A. That's right, sir. If we didn't get a reply from an employer in a certain number of days, we were required to call them. Mr. WILSON: May I have that answer? The WITNESS: If we didn't receive a reply from an employer within a specfiic number of days, we were required to contact the employer. The days varied, I mean, depending on what part of the claim was involved, and so on. In the course of their conversation Falls intimated to Wherley that "lack of work" was not the real reason that Raymond had laid him off, but that the real reason was because he was not in good standing with the Union. After Falls made this statement Wherley called the Raymond job on Gest Street and talked to Phelan, the superintendent on the job. Since his testimony in this regard is the source of the Trial Examiner's predicament in resolving this particular issue, he feels that this testimony should likewise be inserted herein. It follows below: Q. Now, you called this company yourself and talked to Mr. Phelan or talked to some person that you are not familiar with? A. I called and I don't know who answered the telephone, but I identified myself as the examiner from the Bureau of Unemployment Compensation and wanted to speak to either the personnel director or the supervisor, which is the sources of our information generally unless we can't complete the call there, and then I was told that to wait a minute and then this other man came on, identified himself as Bernie Phelan, superintendent, I believe he was, or something of that nature. Q. And what did you say to Mr. Phelan and what did he say to you? Mr. WILSON: Object. Mr. GOLDMAN: Object. TRIAL EXAMINER: Overruled. I will take it. You have your exception. A. I asked-I should tell you what I asked him, I suppose. Q. Yes, what did you ask him. A. I asked him why this man was discharged from their company, it was Falls, and he was rather hesitant, as I recall, and he said, "Well, the union has requested us," or, "He is not in good standing with the union." It was some- thing to that effect, I couldn't quote the man his exact words. Q. Just the substance. A. That was the substance, he was not in good standing with the union and the union has requested that he not be employed. But he went on to say it was lack of work. Lack of work is a common statement given when there is no protest on a claim; if an employer wants to pay a man, he usually would say "lack of work," and we would let it go at that because we are happy to pay the other man's money in most cases, I mean, we have no reason to contest it. CARPENTERS LOCAL UNION 224, ETC. 333 As indicated in the above excerpt from Wherley's testimony, counsel for both Respondents objected to his testimony in this regard . Their objection was overruled by the Trial Examiner . Thereafter counsel for the Respondents lodged additional objections to this entire line of inquiry by the General Counsel . One of their objec- tions was predicated on the theory that the General Counsel could not impeach his own witness, meaning Phelan, whom he had called as his witness shortly before Wherley testified. Their objection on this ground was overruled by the Trial Exam- iner, for reasons set forth in the Ivy Hill Lithograph Company case 69 As to the question regarding the admissibility of the evidence the Trial Examiner has no com- ment. Suffice it to say at this point that there is a difference between the admissibility of evidence and the use to which it is put by a trier of the facts. This important question will be discussed and disposed of below. Wherley further testified that after he had the above conversation with Phelan, he re-called him under the following circumstances . Falls who was seated beside him while he talked to Phelan in the first conversation disputed a notation he had made on a piece of paper to the effect that Falls had been laid off for "lack of work." He then re-called Phelan and asked him if Falls was "eligible for re-hire" with Raymond, since he had been laid off for "lack of work." According to Wherley, Phelan said he was not and that "he had a meeting with the Union, and the Union had told him that Falls was not to be put on the job, and if he was, there would be a shutdown. He said for that reason they are not interested in rehiring Falls under any conditions." 70 In the course of his testimony Wherley testified that he put on Falls' claim or application for unemployment compensation as the reason for being out of work, "lack of work." Whether or not he placed the notes he made at the time he had the conversations in the office files of the case is not clear. The resolution of his testi- mony in this regard can only be determined by an examination of the files. Falls' testimony in regard to the above incident was about the same as Wherley's, except as to the first conversation with Phelan. Quite frankly his testimony in this regard is most confusing. As the Trial Examiner interprets it, Falls' testi- mony was to the effect that he did not mention his difficulties with the Union when he first talked to Wherley, but that he brought the union question up after Wherley had talked to Phelan and had made a notation on a pad about the Union and "lack of work." At this point he told Wherley in substance that there was plenty on work at the job, and that it was then that Wherley recalled Phelan. Be that as it may, the Trial Examiner sees no point in resolving the credibility issue as between Falls and Wherley on this point, for the simple reason that the end result would be the same , in regard to all of Wherley's testimony about his conversation with Phelan. Before disposing of the issue as to whether or not the Trial Examiner should con- sider Wherley's testimony in disposing of the Raymond case, he desires to point out to all concerned herein that Wherley's conversation with Phelan was made in his official capacity as a claims referee for the Ohio Bureau of Unemployment Compensation. There is not a scintilla of evidence in the record that he advised Phelan or any other official of Raymond that Falls was seated beside him during the conversations. In his case-in-chief counsel for Raymond recalled Phelan for cross-examination in regard to Wherley's testimony concerning the above telephone conversations. Due to its importance to the issues herein the Trial Examiner feels that a pertinent excerpt therefrom should likewise be inserted herein . Consequently it follows below. Q. (By Mr. GOLDMAN.) Mr. Phalen, were you present in the hearing room yesterday during the time that Mr. Richard Wherley, a previous witness in this case testified? A. Yes, sir. Q. Were you present during the entire time that he testified? A. I was. Q I believe you previously testified, Mr. Phelan, that you did have a tele- phone conversation while you were superintendent of the sewage disposal job for Raymond International , Inc., at Gest and Evans Street, Cincinnati, with a person who identified himself as being with the Ohio Bureau of Unemploy- ment Compensation. Did you-did that person give you his name, if you remember? A. I believe he did, but I don't recall what it was. Q. You don't recall the name? A. No, sir. °B Jack Gordon, et al., d/b/a Ivy Hill Lithograph Company, 121 NLRB 831, at 846. 40 Quotes from Wherley's testimony. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now, did you tell this person who identified himself as being from the Ohio Bureau of Unemployment Compensation, that you laid Mr. Falls off because the Union, the Carpenters' Union asked you to? A. I did not. Mr. WILLIAMS: You did not? The WITNESS: I said I did not. Q. (By Mr. GOLDMAN.) Did you ever state in this phone conversation that Mr. Falls would not be rehired on your job because the Carpenters' Union had instructed you not to rehire him? A. I did not. Q. Did you-what reason did you give Mr.-what reason did you give the man from the Unemployment Compensation Bureau for laying off Mr. Falls? A. Both in the conversation by phone and through my clerk on the form, we told them it was for lack of work. Q. And when you refer to form, you mean the form that you received in the mail at the job there from the Bureau of Unemployment Compensation? A. Yes, sir. Q Did you ever give the Bureau of Unemployment Compensation, either by phone or by mail any other reason for Mr. Falls being laid off ? A. No, sir. Phelan further testified in substance that in his 15 years as a superintendent for Raymond this was the first time that he had ever been called on the telephone by the Ohio Bureau of Unemployment Compensation in respect to reasons why em- ployees were laid off. At the hearing herein, on September 11, 1959, counsel for both of the Respond- ents requested from the Trial Examiner (1) a subpena to Donald Swain, assistant atttorney general of Ohio, and (2) a subpoena duces tecum to Ralph Horwitz, claims manager of the Cincinnati, Ohio, office of the Bureau of Ohio Unemployment Compensation. They appeared and testified at the hearing herein on September 14, 1959. The testimony of each will be disposed of below. Horwitz testified that he, as claims manager, was in charge of all "claims activ- ities" in the Cincinnati office, including "the custody of the records of the Bureau." He readily admitted that he appeared pursuant to the subpoena duces tecum, issued by the Trial Examiner on September 11, 1958. He was next queried by counsel for the Respondent Union in regard to the request in the subpena to " . . produce . the file, including all records, memoranda, notes and correspondence, concern- ing the unemployment claim of Gene Falls," the Charging Party in this proceeding. He informed counsel he did not have any of the documents with him and that he would not produce them ". . . Because the Ohio statutes forbid me to bring those records to any hearing, or any court, or in any manner other than one arising out of unemployment compensation. Further, it forbids me to divulge any information obtained by any transaction between the claimant and the Bureau, the employer and the Bureau and the employer and the claimant, obtained by us in the nature of our business here." 71 He further testified that he had informed the General Counsel prior to the opening of the hearing herein that neither he nor Wherley, even though he had left the Bureau, could under the laws of Ohio, testify in regard to any matters pertaining to the records of the Bureau in the claim of Gene Falls or any other person. A pertinent excerpt from his testimony follows below: Q. (By Mr. WILSON.) Mr. Williams was told that under the law that not only were the records not available but that Mr. Wherley under the law was not permitted to testify? A. That's right. I told him that very definitely and I read to him the entire sections that I have given here. TRIAL EXAMINER: Pardon me for interrupting but Mr. Wherley is still em- ployed by the Bureau? A. He is not. He had resigned to take another job and I told Mr. Williams that. Q. Did you point out even if the person had been in the employ of the Bureau information could not be divulged? A. That is correct. I did. Q. You read those statutes to Mr. Williams? A. I did. Q. And you will not produce the records for us? A. I will not. [Emphasis supplied.] 71 Quotes from Horwitz' credible testimony. CARPENTERS LOCAL UNION 224i.ETC. 335 Horwitz's credible testimony in regard to the laws of Ohio pertinent to employees and former employees of the Bureau of Unemployment Compensation was corrob- orated by the witness, Donald Swain, assistant attorney general of Ohio in charge of Bureau affairs in the Cincinnati, Ohio, area . His testimony in this regard is fully credited by the Trial Examiner. The sections of the Revised Code of Ohio referred to above in the testimony of Horwitz and Swain are set forth below: SEC. 4141.21 Subject to section 4141 .43 of the Revised Code the information furnished to the administrator of the bureau of unemployment compensation by em- ployers or employees pursuant to sections 4141.01 to 4141.46, inclusive,, of the Revised Code , is for the exclusive use and information of the bureau of unemployment compensation in the discharge of its duties, and shall not be open to the public or be used in any court in any action or proceed- ing pending therein , or be admissible in evidence, in any action, other than one arising under such sections . All of the information and records neces- sary or useful in the determination of any particular claim for benefits or necessary in verifying any charge to an employer 's account under sections 4141.23 to 4141.26, inclusive, of the Revised Code, shall be available for examination and use by the employer nand the employee involved or their authorized representatives in the hearing of such cases; and said informa- tion may be tabulated and published in statistical form for the use and information of the state departments and the public. SEC. 4141.22 No person in the employ of the administrator of the bureau of unem- ployment compensation, or who has been in the employ of administrator at any time, shall divulge any information secured by him while so em- ployed in respect to the transactions , property, business , or mechanical, chemical, or other industrial process of any person, firm, corporation, as- sociation, or partnership to any person other than the administrator or other employees of the bureau of unemployment compensation as required by such person's duties, or to other persons as authorized by the adminis- trator under section 4141.43 of the Revised Code. That the official records of the Bureau are of importance to the Trial Examiner in his ultimate disposal of the issue as to Wherley's testimony is evidenced by the following pertinent excerpt from his testimony: CROSS-EXAMINATION (Resumed) Q. (By Mr. WILSON.), After this conversation over the phone, did you then check with the union to see if- A. No, we seldom check the union. Q You seldom do, you do sometimes? A Only-let me explain under conditions we might. Each week a person drawing unemployment compensation must make an active search for work, in the back of each form they sign a certification to be true that they have looked for work. And on the back many times the trade people will list unions time after time. We have a standing rule that we would accept a minimum of one employer once each week. So if they would list these places time after time, before we send the claim to Columbus on fraud, we would call the union to determine it. That is about the only time we would call them. Q. You didn't call the union to find out if anything like that occurred at all? A. We were finally satisfied with lack of work; we paid the man. Q. And you were satisfied with lack of work? A We were; if the company had no objections to paying them , then I was willing to accept it. Q. You accepted "lack of work"; is that right? A. As far as I was concerned, I authorized the payment Mr. WILSON: All right, that's all. [Emphasis supplied.] In view of all of the foregoing regarding the testimony of Wherley it is obvious that the complex problem presented thereby is broader than the interests of the named litigants. Of far greater concern are the interests of the public in general, and the measure of respect due other governmental agencies, be they Federal or State, by the Board in the exercise of the powers granted it by the Congress 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has been faced with similar problems in the past and has consistently considered the public interest and respected the rights of other governmental agencies regarding their confidential and privileged records. 'For example, the Board issued an order in Sherry Manufacturing Company, Inc., Case No. 12-CA-1090 ( not reported in NLRB volumes ). In that case the Respond- ent obtained from the Regional Director prior to the hearing subpenas duces tecum and served them upon officials of the Florida Industrial Commission . Thereafter the Commission advised the Respondent that the materials sought were confidential and privileged under Florida law and that they would be furnished in response to a court order only. The Respondent then served upon the parties including the Regional Director and counsel for the General Counsel a motion to enforce the subpenas under Section 11(2) of the Act. After other matters at the hearing before the Trial Examiner were considered including his denial of the motion to revoke, the matter came before the Board . In its order dated December 22 , 1959, it said: On November 25, counsel for the General Counsel applied to the Board for special leave to appeal from the Trial Examiner's November 10 ruling refusing to revoke the subpenas . On November 30, the Respondent filed its opposition on the ground , inter alia, that the application for leave to appeal , filed 19 days after the Trial Examiner's ruling, was not timely under Section 102.62 of the Board's Rules and Regulations. On December 3, the Respondent moved that the Board grant a hearing to adduce evidence with respect to the petition to revoke the subpenas . For the reasons hereinafter set forth , this motion for a hearing is hereby denied. While, in the Board's opinion, there is merit to the Respondent's contention that the General Counsel 's November 25 application for special leave to appeal the Trial Examiner 's ruling of November 6 was untimely, the Board is also of the opinion that, as the merits of the subpena issue is before the Board on the Respondent's request to enforce the subpenas, it should determine the issue. rThe Board has considered the entire matter, and, in accord with established Board precedents, it has determined that , under the Florida Unemployment Compensation Law, the materials sought to be produced by the subpenas are confidential, privileged, and are not to be disclosed except to certain govern- mental agencies , of which the National Labor Relations Board is not one. The Board has concluded that enforcement of the subpenas herein would be incon- sistent with law and with the policies of the Act and that therefore they should not be enforced.' Accordingly, IT Is ORDERED that the Trial Examiner 's ruling denying the petition to revoke the subpenas herein be , and it hereby is, reversed; and IT IS FURTHER ORDERED that the subpenas herein be , and they are hereby, revoked; and IT IS FURTHER ORDERED that the Respondent 's request to enforce the sub- penas be, and it is hereby denied. Dated, Washington, D.C., December 22, 1959. By direction of the Board: FRANK M . KLEILER, Executive Secretary. ' Cashman Auto Company, 109 NLRB 720; Tomlinson of High Point, Inc, 74 NLRB 681 While it is true that no formal motion to revoke the subpena was presented to the Trial Examiner for consideration by officials of the Ohio Unemployment Com- mission at the hearing herein, nevertheless Horwitz' testimony was to the same effect. Consequently the basic problem is before him, that is, should he consider the testi- mony of Wherley regarding matters which were unquestionably of a confidential na- ture and under the laws of the State of Ohio unavailable to the litigants herein or any other "'persons" placed in similar situations? 'In other words, insofar as the instant case is concerned, should the Board do by indirection that which it clearly would not do by direct action? In the considered opinion of the Trial Examiner the answer is "No." In the circumstances discussed, described, and found above the Trial Examiner rejects Richard Wherley's testimony in its entirety, and in no circumstances will he consider it in his ultimate determination of the issues herein. The General Counsel in his brief has requested the Trial Examiner to find that there existed between Raymond and the District Council ."... an exclusive dis- criminatory hiring hall arrangement. ..' He admits that there is no such allega- tion in the complaint, but nevertheless he contends as follows: CARPENTERS LOCAL UNION 224, ETC. 337 This action by Sauer against Shannon and Phelan's participation in it is posi- tive proof that the Council's approval was a condition of employment on the Raymond Project on the theory in the Houston Maritime Association case, supra. In short, this evidence proves an illegal exclusive discriminatory hiring hall arrangement between Raymond 7 and the Local through the Council. I realize that this was not alleged in the Complaints against the Local and Ray- mond, however, the Trial Examiner is not limited to the pleadings in any case because Section 10(b) of the Act specifically provides that "Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evi- dence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States adopted by the Su- preme Court of the United States pursuant to the Act of June 19, 1934 (USC title 28, secs. 723-13, 723-C)" and said rules provide in Rule 15(b) in pertinent part: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." These facts were litigated and moreover they are sub- stantially admitted by Sauer. Accordingly, the Trial Examiner could properly recommend an appropriate remedy, i.e., a Brown-Olds remedy in respect to said illegal hiring hall arrangement; however, the General Counsel only asks that the Trial Examiner find the existence of the said hiring hall arrangement to show the joint responsibility by Raymond and the Local for the action taken against Falls when he was discharged on September 5, 1958. The last point to be mentioned in respect to the Raymond Project is Ray- mond's economic defense for discharging Falls, to wit, that he was laid off for lack of work. GC Ex. 33, a chart of the history of the days worked by the pile drivers on the Raymond Project gives the lie to that contention. It clearly shows that Falls was replaced and a full crew was maintained on the Project long after Falls was discharged. In view of the foregoing and in conjunction with argument made at the hear- ing, the General Counsel submits that the Trial Examiner should recommend an appropriate remedy for all the violations of the Act alleged in the Complaints in this matter. Respectfully submitted, HAROLD V. WILLIAMS, Counsel for the General Counsel National Labor Relations Board n Ninth Region 1200 Ingalls Building 6 East Fourth Street Cincinnati 2, Ohio. 7 The theory of the cited case applies even though Phelan was not a member of the "Union" since his participation with Sauer in the enforcement of the rule requiring the payment of the "permit money" to the Council as required by the Council's constitution, bylaws and trade rules (GC Ex 5), discussed above, shows that such payment and compliance with GC Ex. 5 was a condition of employment on said project. His request in this regard is denied for the following reasons: (1) At the hearing herein he was questioned on several occasions by the Trial Examiner and by counsel for the Respondents as to his position in this regard, particularly when he adduced testimony that would tend to show such an arrangement, at which times he consist- ently stated to the record that he took no such position and refused to amend his complaint when suggested to do so by the Trial Examiner; (2) contrary to his contention, the issue was not fully litigated at the hearing herein for the simple reason that evidence insofar as the Raymond case is concerned was consistently objected to by counsel for both Raymond and Local 224. True the Trial Examiner overruled their objections but this was because the complaints in the Raymond case and the Kiewit case were combined,72 and it was an impossibility in such circum- stances to separate the wheat from the chaff in this regard; (3) his contention that Section 10(b) of the Act prevails is likewise rejected for the simple reason that the sentence he quotes reads as follows: "Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to the 72 See supra in re the Trial Examiner's comment "in retrospect" as to the combining of the cases herein 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act of June 19, 1934 (U.S.C., title 28, secs. 723-B, 723-C.)" This quoted section deals with the rules of evidence and not with the fundamental and basic issues involved herein, to wit; a violation of the National Labor Relations Act. Respondents and/or defendants in Board or any other proceedings have the basic right to know what they are charged with, and the right to meet and defend said charges. To the Trial Examiner at least litigants before the Board are entitled to due process, and as far as he knows they always have been. This case is no exception to that basic and funda- mental principle which has consistently stood the test of time. Neither the General Counsel of the Board nor any other Federal agency has the right to back into a case regardless of what his motive may be or how strong his suspicion may indicate a violation of this or any other act of Congress; and (4) the Board itself in similar situations has held, "The General Counsel's failure to allege that the demand for the contract clauses was violative of Section 8(b)(3) precludes the Board from making any finding on this point. International Union of Operating Engineers, Local No. 12, (Associated General Contractors), 113 NLRB 655, 661.1173 In another case it held, "The General Counsel excepted to the failure of the Trial Examiner to find that the transfer of Kirkman was violative of Section 8(a)(3) and (1) of the Act. We find no merit in this exception, as the complaint did not allege a discriminatory transfer but only a discriminatory discharge." 74 [Emphasis supplied.] Concluding and Overall Findings in the Raymond Case After careful consideration the Trial Examiner concludes and finds that the General Counsel has failed to show by a preponderance of reliable and probative evidence, considered in the light of the entire record, that the Respondents named in Cases Nos. 9-CA-1523 and 9-CB-515 have engaged in unfair labor practices. His conclusion is predicated upon the findings he has made above. Further comment follows below. Even though the Trial Examiner has intimated above his ultimate disposition of the issues raised by the complaints in the Raymond case, he feels that further com- ment should be made in regard to certain particular incidents. First, he has refer- ence to the complaint in Case No. 9-CB-515 against Local 224. The record herein clearly shows that the only labor organization involved or even mentioned in the record was the District Council, by and through its agents, Robert Sauer, George Osterkamp, and Harold Ellison, the steward on the Raymond job. There is not a scintilla of evidence in the entire record, oral or documentary, that implicates Local 224, as an entity, in any of the incidents and/or situations relied upon by the General Counsel in support of his position. The whole gamut of testimony adduced by him involves the District Council and its agents. In fact the General Counsel in his brief, particularly in the excerpt therefrom set forth above, refers to the District Council and not to Local 224 as the culprit in the alleged illegal hiring hall agreement and/or arrangement. In the circumstances the Trial Examiner also finds for the same reasons set forth above in his recommendations for dismissal of the complaints in the Kiewit case as to Local 224, that the complaint in Case No. 9-CB-515, naming Local 224 as a Respondent be dismissed. As to Raymond the Trial Examiner is convinced and finds that absent Wherley's testimony, which he has refused to consider for reasons stated above, there is only suspicion to support the General Counsel's contention that Raymond acting through Superintendent Bernard Phelan laid off Falls at the request of Robert Sauer, business agent for the District Council. When these factors are taken into consideration, plus the further fact that the District Council is not even named as a Respondent in the Raymond case, the Trial Examiner finds himself enmeshed in a web of suspicion. Since suspicion is not evidence the Trial Examiner is convinced and finds that the complaint against Raymond, Case No. 9-CA-1523, be likewise dismissed. CONCLUSIONS OF LAW 1. Peter Kiewit Sons Company and the Respondent Raymond International Inc., are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Local Union No. 224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and the Respondent Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. R3 Amalgamated Lithographers of America, Local No. 2 (Buffalo Employers' Group), 124 NLRB 298. 74 Granite Hosiery Mills Inc., 124 NLRB 1426. A. O. SMITH CORPORATION, GRANITE CITY PLANT 339 3. The Respondents have not engaged in the unfair labor practices alleged in the, complaint 75 [Recommendations omitted from publication.] 76 For reasons stated , this conclusion applies to Local 224 . The complaint against the District Council is barred by Section 10 ( b) of the Act. A. O. Smith Corporation,' Granite City Plant and William T. Randolph, Thomas L. Willmore, James L. Hall, Arley Potts, Anton Becker, William E. Watts, Ruben Luther , Frank Becker, William R. Hogan, Clyde Woolverton, Henry L. Kent, Thomas E. Gipson, Clarence E . Shaw, Frederick J. Bailey, Albert W. Ennis, Conrad F. Bauer, Harry W. Nichols, William G. Whit- son, Harold R. Garner, Sr., Elroy Paschedag, Albert Rowden, Arthur Ray Miller, and' Calvin J. Cissell' International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 5751 and William T. Randolph, Thomas L. Willmore, James L. Hall, Arley Potts, Anton Becker, William E. Watts, Ruben Luther, Frank Becker, William R. Hogan, Clyde Woolverton, Henry L. Kent, Thomas E. Gipson, Clarence E . Shaw, Fred- erick J. Bailey, Harry W. Nichols, William G. Whitson, Harold R. Garner, Sr., Elroy Paschedag, Albert Rowden, and Arthur Ray Miller. Cases Nos. 14-CA-1757, 14-CA-1759, 14-CA-1760, 14-CA-1761,14-CA-1762,14-CA-1763,14-CA-1764,14-CA-1765, 14-CA-1766, 14-CA-1767, 14-CA-1768,14-CA-1769,14-CA-1770, 14-CA-1771, 14-CA-1774,14-CA-1775,14-CA-1777,14-CA-1778,• 14-CA-1781,14-CA-1782,14-CA-1789,14-CA-1804,14-CA-1828, 14-CB-526, 14-CB-530, 14-CB-531, 14-CB-532, 14-CB-533, 14- CB-534, 14-CB-535, 14-CB-536, 14-CB-537, 14-CB-538, 14-CB- 539, 14-CB-540, 14-CB-541, 14-CB-542, 14-CB-545, 14-CB-546, 14-CB-548, 14-CB-549, 14-CB-552, and 14-CB-56P2. July 21, 1961 DECISION AND ORDER On April 15, 1960, Trial Examiner Charles L. Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. 'The Trial Examiner also found that the Respond- ents had not engaged in other unfair labor practices alleged in the I Referred to herein as the Company. 2 Referred to herein as the Union. 132 NLRB No. 9. 614913-62-vol. 132-23