Huber, Hunt & Nichols, Inc.

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any respect by antiunion animus. I am further persuaded by the fact that McAuliffe did not hire six former employees of Owens, Inc. Further, I find that the Felices ' employment by Owens, Inc., was terminated on September 17; and that Respondent's failure to employ the Felices was not in viola- tion of Section 8(a)(3) and ( 1) of the Act. Also, that the refusal to employ was an exercise of judgment which was not influenced by any antiunion proclivities on the part of Respondent. -CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent's failure to hire the Felices was not a violation of Section 8(a) (3) and (1 ) of the Act as alleged in the complaint. [Recommendations omitted from publication.] i Huber, Hunt & Nichols, Inc. and Thomas McAboy, Jr., Charg- ing, Party and International Hod Carriers, Building & Com- mon Laborers Union of America , AFL-CIO, Local No. 70, Party to the Agreement International Hod Carriers, Building & Common Laborers Union of America, AFL-CIO, Local No. 70; Wilmer Kimble, President ; Harold Lang, Secretary-Treasurer ; Lemard Griffin, Recording Secretary-Steward and Thomas McAboy, Jr., Charg- ing Party and Huber, Hunt & Nichols, Inc., Party to the Agreement. Cases Nos. 15-CA-1795 and 15-CB-487. November 16, 1961 DECISION AND ORDER On March 10, 1961, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaints and recommending that the complaints be dismissed in their entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. 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 reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaints.] 134 NLRB No. 33. HUBER, HUNT & NICHOLS, INC. INTERMEDIATE REPORT 349 STATEMENT OF THE CASE Upon charges, as amended, filed by Thomas McAboy, Jr., the General Counsel for the National Labor Relations Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued complaints in the above cases, dated Octo- ber 25, 1960, alleging, as appears hereafter, that the Respondents had engaged in and are engaging in unfair labor practices within the meaning of various provisions of the Act. On the same day the Regional Director issued an order consolidating the cases for hearing. The answers deny the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Mobile, Alabama, on November 28 and 29, 1960, before the duly designated Trial Examiner. All the parties were rep- resented by counsel, except the Charging Party who appeared in person, and were afforded opportunity to examine and cross-examine witnesses and to introduce evi- dence bearing upon the issues of the case. In accordance with the right granted all parties, counsel for the Respondents presented oral argument at the conclusion of the hearing and thereafter counsel for the General Counsel and counsel for the Re- spondents submitted briefs, which I have carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS Counsel stipulated that the Company, an Indiana corporation, maintains its princi- pal office at Indianapolis, Indiana, where it is engaged in the general construction busi- ness in Indiana, Alabama, and various other States in the United States. In .the year preceding the issuance of the complaints, which is representative of its business, the Company received in excess of $50,000 for services performed outside the State- of Indiana and in excess of $100,000 for services performed for customers located within the State of Alabama, which customers shipped goods or performed services in excess of $50,000 annually, outside the State of Alabama. The Respondents concede the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED; THE INDIVIDUAL RESPONDENTS Counsel stipulated that International Hod Carriers, Building & Common Laborers Union of America, AFL-CIO, Local No. 70, is a labor organization within the mean- ing of -Section 2(5) of the Act. I further find that the individuals named as Respond- ents are officers and agents of Local No. 70 within the meaning of Section 8(b) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues In substance the complaints, as amended, allege that since about March 15,'1960, the Respondents have by practice, understanding, or agreement maintained an unlaw- ful hiring arrangement and since about May 13, 1960, the Respondents have dis- criminatorily denied employment to McAboy, all in violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act. The answers deny the com- mission of any such unfair labor practices. B. The job and individuals involved in the proceeding About March 29, 1960, the Company, as one of other contractors, commenced construction of an addition to the plant of Scott Paper Company, at Mobile, Alabama. At all times material herein the following-named persons held the positions appear- ing next to their names: Knofel E. Mattox, job superintendent; William C. Boykin, bookkeeper; Wilmer Kilmer, president, Local 70; Harold Lang, secretary treasurer, Local 70; McKinley Perkins, business agent, Local 70; Lemard Griffin, recording secretary, Local 70; and S. A. Alsup, representative, Mobile Building Trades Council. C. The prejob conference About March 15, 1960 (all dates refer to 1960), the above-named individuals, except Lang and Griffin, and representatives of some 18 or 19 unions affiliated with the Mobile Building Trades Council met at the company office at the jobsite. The 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of the meeting was to discuss jurisdiction of the various crafts, the work rules of the locals, and hiring procedures. Alsup acted as spokesman for the locals, including Local 70. Mattox, as a witness for the General Counsel,' testified that the parties discussed the working rules of the various locals and that he agreed to call the locals, including Local 70, for all men "whenever it was at my convenience." Later, the General Counsel presented Mattox with a statement, which Mattox acknowledged, and he reaffirmed the truthfulness of his account of the meeting set forth therein, as follows: and I told him [Alsup] I would abide by the Local's rules and practices. I had the Laborers Working Rules and tried to abide to them as best I can. We'd pay union wages and abide by other working conditions set out in the Local's working rules. I told the various union agents that we would abide by ,their rules as best I could and would call the halls for all my men. Lang and Perkins of Local 70 Laborers attended this confereence and I told them as well as the other agents of various locals this.2 Mattox further stated he told the union representatives he reserved the right to fefuse to hire anyone sent by the locals, but he could not recall how the subject arose, or for what reasons he could decline to hire any man, or what, if anything, the union representatives said on that point. Boykin, when questioned regarding the discussion on employment practices, responded: Well, there was to the extent we would call the hall, call the various locals for men, that we would not make specific request for any particular man . . . that was the agreement. I mean, there was nothing I don't think binding. If we insisted on a particular man we could have gotten that particular man. It is undisputed that Mattox made it clear that he alone had the authority to hire and fire and that he or Boykin would call the various locals when men were needed. It is equally plain that shortly after the conference Alsup sent Mattox the pay scale for the various locals as well as copies of their bylaws and working rules. At the time of the prejob conference, the Mobile Building Trades Council had a collective-bargaining agreement with the Associated General Contractors of America, Mobile Section, Alabama Branch (herein referred to as the AGC agreement), which contained a "Referral Clause," or model hiring hall clause in line with the standards announced in the Mountain Pacific case.3 Alsup testified he negotiated the AGC agreement on behalf of the locals and at the prejob conference he asked Mattox if he was in a position to sign the agreement. Mattox refused to sign the agreement, but said "he would employ men under the conditions so long as we could furnish them with competent and efficient personnel," otherwise he would employ at his own discretion. Mattox further stated that while he would not sign the agreement he would recognize it since the Company was a member of the AGC. Alsup said Mattox was "very emphatic" on his right to hire competent men at the jobsite and that he wanted to bring in his own general labor foreman, Mitchell Cieutat. Alsup told Mattox he had the "privilege" of hiring his key personnel. Mattox stated that while Alsup may have sent him a copy of the AGC agreement he never signed it and the only agreement he had with the locals and Local 70 was the oral agreement described at the prejob conference. The oral agreement was not reduced to writing and posted at the jobsite. Lang stated he never discussed the AGC agreement or the referral clause with the Company. When asked whether a notice concerning its hiring hall practice had been posted on the bulletin board of Local 70, on March 15, Lang said a notice of the "model hiring hall system" had been posted for more than a year. Later, when asked if the referral clause of AGC agreement was posted at the office of the local, Lang said it was posted at one time but "not at that particular time," presumably the time in question Perkins, when asked if the Company "was supposed to come through the hall," answered, "That's right," but "It wasn't carried out like that. They hired some through the hall and they hired some at the gate." 1There is no doubt Mattox was called as a witness under Rule 43(b) of the Federal Rules of Civil Procedure, although the record shows he was called as a witness under the "statute " a It was Kimble, not Lang, who attended the conference 'Mountain Pacific Chapter of the Associated General Contractors, Inc.; et at., 119 NLRB 883. HUBER, HUNT & NICHOLS, INC . 351 D. Local 70's referral system Lang's duties as secretary-treasurer included the handling of initiation fees and dues and the referring of men to jobs. The local for many years has used the "one- list system, first-in-first-out." Applicants for employment, both union and nonunion members, were and are entitled to register for the list by appearing in person at the union hall on Thursday afternoon and filling out a card giving tneir name, social security number, type of work performed, and the contractors they previously worked for. As requests for men were received from employers, and they were not sup- posed to ask for particular individuals, the men were referred in accordance with their standing on the list. The local had no fixed hours for dispatching men but if the top men on the list happened to be out of the hall when the job announcement was made they did not lose their standing on the list. After a man had been referred to a job his name remained on the list for 2 days, but if he worked 3 days his name was removed therefrom. Lang stated that for some years it was the policy of the local to refer a man to a job he himself had obtained, provided he had a written request from the employer. However, sometime after the filing of the present charge, July 14, Lang stated a man may not seek his own job and then request a referral thereto. When asked if an employer could request an individual by name, Lang said, "He could in a way and then he is not supposed to otherwise." As already stated Local 70 posted a copy of the model hiring hall system at its office. Lang said the local was trying to operate under that system but admitted the local was not using the "four group system" outlined therein for the reason that laborers are considered as semi and unskilled workmen, so the local considers them as able to do all types of construction work and, therefore, places them in one classification.4 Lang conceded the local's one-list system, as such, was not posted at its office. Alsup, who has acted as business representative for the Council for 14 years and business manager for the Ironworkers Union for 18 years, testified it was "prac- tically impossible" for Local 70 to classify men in the "four group system" for the reason that laborers have no mechanics or apprentices and they are all classified in one group as "common laborers." E. Hiring procedures on the job Preliminarily, the addition to the Scott plant was being constructed in a fenced-in area, which was protected by guards employed by Scott, and passes or other iden- tification were required to gain admittance into the property. Mattox hired Cieutat as general labor foreman (he did not give the date) and instructed him to obtain enough men to get the job started. In line with these instructions Cieutat selected the necessary men and Mattox or Boykin actually hired them and placed them on the payroll. Obviously, this went on for about 2 weeks when Mattox posted a notice, dated March 29, on the outside of the office at the jobsite, the gist of it being that Mattox would do all the hiring. Thereafter Mattox stated that when laborers were needed Cieutat would go to the gate to see if any men were available and, if so, he would bring them to the office to be hired. Mattox said he always followed Cieutat's recommendations regarding the hiring of indi- viduals. He also testified he called the Local 70 hiring hall for some, but not all, of his men. Mattox reaffirmed the following description of the Company's hiring practices as contained in his above-mentioned statement to the General Counsel: To the best of my knowledge every laborer we have hired has been out of Local 70 and we take up their referrals and note that he was referred from Local 70 and then we would give the slip back to the man who, in turn, presents it to the labor steward, E. L. Lewis from Local 70 and goes to work. If the labor steward sees the man working without a referral slip he will come and asked us to pull him off the job. Mattox testified that he left the selection of laborers, around 90 in number, to Cieutat and he did not personally know whether Cieutat obtained the men at fl- gate or through Local 70. He further stated that he never asked any man wh: her he had a referral from Local 70. Mattox also stated that he himself hired three men, Kamp, Beverly, and Bass, as rodmen, which is considered laboring work coming under the jurisdiction of Local 70. Again, he said that on several occasions he hired * The model hiring hall system provides for the registering of men in the highest of one of four groups for which he is qualified. These groups relate to mechanics, appren- tices, and time spent in the trade. 352 "DECISIONS OF NATIONAL LABOR RELATIONS BOARD laborers after they had been laid off by other contractors on the job, without going through the local for clearance or referral. The Company's carpenter foreman, Swanson, likewise hired laborers at the gate. Boykin stated the Company employed about 100 laborers at one time and that Cieutat as general foreman had supervision over these men as well as the labor foreman immediately assigned to groups of 15 or 20 men . Boykin called Local 70 for men and occasionally requested a particular man be referred . He also heard Mattox call the hall for laborers , but not by name. Boykin said while Cieutat had no authority to hire men, he could recommend the employment of individuals and his recommendations were followed . He further stated that since many of the men employed had no referral slips he spoke to Perkins who informed him Cieutat would know whether the man should have a referral card. Boykin said Kamp , Beverly, and Bass were hired directly on the job, were not members of Local 70, and did not have referrals from the local. These individuals were all hired as rodmen or laborers and were paid laborers' wages , except Bass who had just graduated from high school and he was paid the minimum wage. While Cieutat was obviously engaged as general labor foreman at an early date he did not actually go on the job until about 6 or 8 weeks after it had started . Cieutat, a member of Local 70 for some 20 years, said he selected his initial crew on the basis of past performance regardless of membership or nonmembership in Local 70. Cieutat had no authority to hire, but recommended that Mattox hire the members of the initial crew, and his recommendations were followed by Mattox . These men were hired without referrals from Local 70. He further stated that of the normal labor force of about 90 persons, 12, 15 or 20 were hired without referrals from the local, including some direct hirings by Mattox , who assigned the men to him . Cieutat admitted he sent some men to the hall with notes stating, "I can use this man," or "Fix him up and send him to me ." However, he said he did not demand a referral from the local. Later, he denied that he ever sent an applicant for work to the Local 70 hiring hall for any reason whatever. Cieutat also stated that Carpenter Foreman Swanson directly hired Melvin Tate and John Tate, who had worked for him on a previous job. Lang said he referred men at the request of Mattox , Boykin , and Cieutat. The men referred at Cieutat 's request presented notes or statements to Lang asking that - the particular individual be referred and referrals were granted on that basis. James Tanner had been a member of Local 70, but had been suspended at the time in question. Tanner was hired directly and without referral by Lee Hill, a member of Local 70 and foreman for Campbell Plumbing Company, which was working on the Scott addition. Later, sometime after March, Tanner was hired by Cieutat with- out any referral from Local 70 and worked for the Company for about 5 months. While working for the Company, Tanner stated that, without any prior conversa- tion on the subject with Lewis, Local 70 job steward, he gave Lewis a partial payment on his initiation fee in the local. This sum was returned to him by Lewis who in- formed him that the local did not accept partial payments . Lewis said Tanner could not work unless he paid the full amount and then "knocked off" Tanner so he could raise the money and give it to the local . Tanner was off a couple of hours during which time he paid his initiation fees to Local 70 and then returned to the job. Tanner stated Cieutat did not speak to him about the matter of initiation fees and that Cieutat "didn't know anything about it. . John Tate , a member of Local 70 , testified he spoke to Cieutat regarding a job and about 2 or 3' weeks later he was referred to the job through the local hiring hall. Tate worked under Swanson and was employed for about 51/z months. Lemard Griffin was referred to the job by Local 70, was recommended for em- ployment by Cieutat, and actually hired by Boykin . Griffin was one of the first men hired , around April, and was still employed on the job. Warren, or Robert Dean, a nonunion member, was referred by Local 70 and hired at the same time Griffin was hired. Two other nonunionmen , Tanner and Leonard Griffin, also worked on the job . All three of these men worked for about 5 months or until they were laid off in October . Dean and Leonard Griffin joined Local 70 while employed on the job but Lemard Griffin did not know the circumstances under which they joined. Lemard Griffin also stated he heard Tanner say he had joined Local 70. Kimble testified that some 20 or 30 members of Local 70 were hired without referrals , including Sidney Mitchell , Alton Reddick , and Hillery Dean . At least three nonunion members, Tanner, Eddie Winston, and Earl Love, were hired without referrals from Local 70. Kimble could not recall that he referred any nonunionmen to the job. Kimble also testified he was familiar with the duties of a rodman and that Local 70 exercises jurisdiction over such employees . He stated that the local has supplied rodmen to contractors in the past and currently had men working as such. HUBER, HUNT & NICHOLS, INC. 353 F. The alleged discriminatory treatment of McAboy At one time McAboy was a member of Local 70, was and is a close friend of Lang, and friendly with all the officers of Local 70. While a member of the local, McAboy was temporarily employed as a dispatcher and his duties included the referring of men to jobs, udder the single -list system and collecting initiation fees and dues, in the absence of Lang. Admittedly, McAboy was suspended from Local 70 for nonpayment of dues about 2 or 3 years prior to the date of the hearing herein. Following his suspension, McAboy frequently went to the office or the hall of Local 70. In February, McAboy went to work for the Alferbaoh Construction Compnay on a job in Mobile. Initially the job was nonunion but later it became a union project and McAboy continued to work thereon for a period of 3 weeks . McAboy did not state the circumstances under which his employment was terminated , but this is immaterial since there is neither allegation nor contention that he was discrimina- torily discharged . Seemingly, McAboy, while working on the Alferbach job, de- cided "to pay up" and restore his membership in Local 70. Accordingly, on March 18 and 25, he voluntarily gave Lang $20 and $10, respectively , as partial payments on his initiation fee, which Lang agreed to hold for him. From his past experience McAboy knew the local did not accept partial payments on the initiation fee, except where there was a checkoff on the job , and there was no checkoff on the Alferbach job. After his layoff, McAboy decided to "withdraw " his payments be- cause he was out of work , so Lang at his request returned the money to him. McAboy testified that in the latter part of March or early April he met Cieutat at the Local 70 hall, that the two of them left the building and had a conversation on the street near Cieutat's car. McAboy had heard Cieutat "was going on" as the general foreman for the Company and told him that he needed work and would he give him a job. Cieutat said he would help him and give him a job "when things got lined up." McAboy also spoke to Cieutat about buying a pig'from him for a barbecue , and, apparently , the conversation ended on that note. Sometime later, in April , McAboy and John Stallworth stopped by the job and talked to Cieutat . McAboy brought up the subject of buying a pig and then asked how the job was coming along. Cieutat said the weather had been bad and to. check with him the following Tuesday. In the course of their conversation McAboy asked Cieutat to give Stallworth a job and he said that he would. McAboy and Stallworth talked to Cieutat at the job the following Tuesday, May 3. Cieutat said the job had been held up by weather conditions and to come back the next Wednesday or Thursday , May 11 or 12. In line with Cieutat's suggestion , McAboy went to the job the next Wednesday or Thursday, this time accompanied by John Tate . Cieutat told him he thought he- had the job lined up but he would go inside and check , that if he needed some men "he would give us a call ." McAboy stated they were going to the local hall, which they did. After remaining at the hall for 20 or 30 minutes McAboy told Tate he was going "to the employment office to see what I could scout up," and would be back. Upon. McAboy's return to the local hall , Lang inquired where he had been and then stated that Griffin had called for him and Tate . McAboy then gave the following version of Lang's conversation with him: "And I [Lang] sent him Tate and told Griffin you wasn't paid up in the Local,, and I couldn't send you but I'd send him Tate. Tell him that and find out what he wanted to do and let me know." Griffin, he told Lang-he told me that- Griffin told him that he would tell Mr. Cieutat and whatever Mr. Cieutat wanted to do would be all right, perfectly all right with him. Following the above conversation McAboy went to the jobsite and talked to. Cieutat on the parking lot, after working hours. McAboy related what had hap- pened at the hall and Cieutat said he had called for him. McAboy complained the local had his money but would not give him a job and would Cieutat put him to work. Cieutat said he would give him a job and to "Come back Tuesday morning," May 17. Cieutat then drove McAboy and "a witness," whose name he could [not] recall , back to town. Upon arriving in town McAboy and his "witness " went to the hall of Local 70' where they met with Perkins . McAboy informed Perkins he wanted to see him' about a work referral, that Cieutat had told him to come to work Tuesday, and that he had a witness to prove it. Perkins replied he believed McAboy, that he did not need a witness , and that he would give him a referral on Monday, May 16 . Perkins remarked, "These guys," Local 70 officials, are scared of the coming election of- 630849-62-vol. 134--24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD local officers, but he was the only one who should be worried.5 Apparently, that ended the conversation. On Monday, May 16, McAboy met with Perkins at the office of Local 70. Perkins stated he could not give McAboy a referral because Kimble was opposed to his do- ing so and commented the officials were worried about the election. Kimble then entered the office and Perkins remarked, "He [Kimble] won't give you a referral." Kimble answered that was true, that it was too close to election time. Kimble further stated: "McAboy, you know too many people out there where you can get $70.00." He says, "Go out there and get $70.00 and come back here and I'll give you a referral." McAboy then left Perkins' office and asked Lang for a referral, but Lang refused his request. McAboy thereupon left the hall or office of Local 70. On 'cross-examination, McAboy admitted he made no effort to register for employment with Local 70. On redirect examination he sought to explain his failure to do so by stating that when he was dispatcher 2 or 3 years previously, nonunionmen were told there were union members looking for work. McAboy wound up by saying that he did not know anyone who had been refused registration on the list. - About a week after the foregoing meeting McAboy conferred with his attorney in regard to the filing of charges and during their conversation McAboy inquired if a statement from Cieutat would help his case, and his attorney said that it would. The same day McAboy went to the parking lot at the jobsite where he met Cieutat after working hours. Cieutat opened the conversation by stating he had no place for McAboy at that time. McAboy said he did not come to get a job, that he wanted "a statement to send the International setting Mr. O'Neal here on the fellows." Cieutat asked what kind of a statement he wanted and McAboy answered, "I want a statement from [you] that you did tell me to go to the hall to get a referral and I was refused a referral." After discussing dates, McAboy gave Cieutat a notebook and requested him to write out the statement. Cieutat declined and told McAboy to write it, whereupon McAboy wrote the following statement which was received in evidence at the heaiing: I Mitchell Cieutat did tell Thomas McAboy on the 5/13/60 to go to the union hall and get a rifler card and report to work 5/17/60. Cieutat signed the statement and under his signature printed his title, concrete foreman, the name of the Company, and the location of the job. After securing the statement McAboy admitted he made no effort to contact the International representative, nor did he attempt to bring the matter to the attention of any representatives of Local 70. Kimble testified he had known McAboy for 20 or 25 years and he had put him to work on at least one job in 1959, Ferral Construction Company, and in 1960 on the Alferbach job, although McAboy was not a member of Local 70 and was not on the hiring list. McAboy worked on the Alferbach job for about 2 months and during that period Kimble mentioned he had been on several union jobs since he had been out of the local and that he should come back into the local. McAboy said he would but did nothing about it. Kimble said that a week or two after his layoff at Alferbach, McAboy came to the hall and asked for a referral to the Company job at Scott Paper Company. Kimble informed McAboy that since he did not have a statement or a request for employ- ment from the Company he could not give him a referral Kimble said this was the only conversation he had with McAboy regarding a job referral. He also denied he ever discussed union politics with McAboy On cross-examination the General Counsel developed that about August_ 3, Kimble gave him a statement in which Kimble said McAboy had asked to be referred to the job, "but he had not been called for and no one had given him a statement to that effect, that he would be hired if he had a referral slip. Perkins was present during the conversation." Kimble confirmed the truthfulness of his statement. Perkins was well acquainted with McAboy and while he was working on the Alferbach job he was a frequent visitor at the union hall. On one of these visits Perkins told McAboy he should come back into the Union. Perkins did not refer men to jobs but at times when a contractor would ask for a man he would send one, without a referral. Perkins believed McAboy spoke to him about work, after 5 The union election was held in June and all the officers were reelected except Kimble. Thereafter, Kimble was employed by Local 70 as assistant business representative. HUBER, HUNT & NICHOLS, INC. 355 his layoff at Alferbach, and he gave him the same answer he gave other men, "Yeah. I'll give you a job," because you have to tell them something . Perkins denied having any conversation with McAboy regarding a referral , or that he was present when Kimble or anyone refused to give him a referral . He also denied that he discussed union politics with McAboy or stated he was worried about the coming election. Lang testified McAboy was, and still is, a very close friend of his and at one time, when McAboy was a member 'of Local 70, he acted as his assistant in local matters. In 1960, when McAboy was no longer a member of Local 70, he worked on the Alferbach project for 2 or 3 months , which was a union job . While employed on this job McAboy asked Lang to keep some money for him because he was trying to get back into the Union . Lang made it clear he could not accept partial payments on his initiation fee and McAboy agreed that was true . Lang then accepted the money and later, when McAboy asked for the return of a portion thereof, he gave it all to him. Lang testified McAboy and John Tate came to the office one day, he could not approximate the date, and stated Cieutat said he would put them to work if they would get a referral from the local . Lang informed them to have Cieutat call him or give them a note and he would then issue referrals to them. Lang further told them that about 15 men had been in to see him that morning giving the same stories and he had refused to issue them referrals unless the Company called for them or gave them notes requesting their employment . Upon checking his referral book Lang found Tate was referred to the Company on May 12. Lang did not question the accuracy of his records but said he had no personal recollection of the referral and could not remember whether Tate was given his referral as a result of a telephone call or a note from the Company . The practice was to refer men only on the basis of a telephone call or note from the Company and Lang did not deviate from that practice for Tate or anyone else . He stated that although McAboy was not registered he would have given him a referral if the Company had so requested . Lang said that while he could not recall referring any nonunion men to the job he knew nonmembers of the local had been hired directly and were working on the project. Cieutat stated that before assuming his duties as a foreman , he met McAboy at the union hall at which time McAboy asked for a job. Cieutat told him to come to the job later on and he would be glad to talk to him. Sometime later, when Cieutat was working, McAboy met him on the parking lot and asked about work. Cieutat told him to check with him from time to time. Later , perhaps 2 or 3 days ,or a week, McAboy again met Cieutat at the parking lot and this time he told McAboy that they were getting ready to pour slab and, "Be here Tuesday morning early for work." Cieutat made no mention of McAboy having to go to the union hall or that he needed a referral from the Union . McAboy did not report for work on Tuesday and Cieutat next saw him at the parking lot accompanied by the General Counsel. Cieutat denied having any conversation with McAboy in which McAboy requested a statement to the effect that he had promised McAboy a job. When presented with the written statement described above by McAboy, Cieutat admitted his signa- ture and printing thereon, but denied any knowledge of the contents therein or the writing above his signature . Cieutat said McAboy had mentioned buying a pig from him and that he gave McAboy his name and home directions on a piece of paper two or-three times . He also stated he had given his name and telephone num- ber to many members of the local. Cieutat denied he ever sent men to the union hall with notes of any kind. Cieutat said he know John Tate but that he had nothing to do with his being hired by the Company. Tate and his brother, Melvin, were hired by Swanson and worked under him in the carpenter 's section. John Tate, a member of Local 70, said he talked to Cieutat on one occasion about 2 or 3 weeks before he was hired . No other person was present during this conversa- tion. Another time , before his employment , Tate was at the jobsite and saw McAboy talking to Cieutat but he did not overhear their conversation . Seemingly, when they left the jobsite Tate rode McAboy to the union hall. Tate stated that he went to work sometime in May but he did not know who hired him , that someone called the hall, and he was given a referral by Lang He reported to Foreman Swanson and worked on the job for about 5 months When asked if he saw McAboy the day he was referred to the job, he answered he saw McAboy coming into the hall as he was leaving. Stallworth testified that when the job first started he , McAboy, and Zefro Jackson met Cieutat on the parking lot and asked for work. Cieutat said "He would give us 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a job when the job was stated good" and to come back the following Tuesday. During their talk McAboy mentioned something about buying a pig from Cieutat. The following Tuesday Stallworth and McAboy met Cieutat at the parking lot and Cieutat told them , the job had been delayed because of bad weather but to come back the next week when the job would be straightened out and "we'd probably get on." Shortly thereafter Stallworth obtained another job so he did not report back as requested by Cieutat. Boykin testified he had known McAboy since about 1956 , when McAboy was employed as labor foreman on a job being performed by another company. Boykin, said McAboy was fairly well educated and he considered him a good labor foreman, although he had heard he was "somewhat overbearing " toward the men working under him. Boykin stated that as far as he knew McAboy never made any application for work with the Company . However, he saw McAboy outside the construction gate- one morning in early May and he asked what he was doing. McAboy said he was. looking for a job and Boykin remarked the Company was hiring and "maybe they might be able to use you." Boykin stated he had no conversation with either Mattox or Cieutat concerning the employment of McAboy . Boykin further stated that McAboy never asked him for a - referral and he never requested Local 70, to issue a referral to McAboy. Boykin reiterated that he had no authority to hire but if Mattox had asked his opinion regarding the hiring of McAboy he would have recommended his employment. Boykin related that sometime in early June he was present in the company office when Lemard Griffin telephoned Lang and he heard Griffin ask if McAboy was in "good standing." The conversation lasted about 30 seconds. Boykin did not question Griffin regarding the call , in fact he was at a loss as to the purpose thereof since Griffin was simply employed as a laborer on the job and Lewis acted as steward.' for Local 70. Griffin said that on one occasion he received a message at work to call Lang, which, he did, from the company office. The call amounted to nothing more than a request- for Griffin to come to the local office to sign some checks. Griffin stated there was no mention of McAboy during his conversation with Lang. Lang was not questioned about this telephone conversation. While Mattox was interrogated quite extensively in regard to the prejob conference, hiring practices, and the hiring of certain individuals, he was not questioned at all' concerning McAboy. The record, therefore, is barren of any evidence that he ever- requested Local 70 to refer McAboy, or that McAboy ever applied to him for a job,_ or that McAboy was ever recommended to him for employment. Concluding Findings The issues here are purely factual and the first one to be resolved is whether the Respondents entered into and maintained an unlawful hiring agreement or arrangement. - The touchstone of the General Counsel's contention that such an agreement, or- arrangement existed is Mattox's testimony concerning the prejob conference, the- gist of it being that he told the union agents he would abide by the working rules as best he could and would call the various halls for men. He also related that al- though the working rules of all locals, including Local 70, were discussed , he merely agreed to call the halls for men "whenever it was at my convenience" and that he reserved the right to refuse to hire anyone sent by the locals. Boykin's version of the prejob conference was that the Company would call the locals for men, but not by name. Perkins' account was that the Company was sup- posed to come through the hall but did not do so. Alsup asserted he requested Mattox to sign the AGC agreement but Mattox de- clined, stating he would employ men under the conditions therein so long as the locals could furnish competent men, otherwise he would hire at his own discretion . Alsup further stated that Mattox reserved the right to hire at the jobsite and had the "privilege" of hiring his key personnel. It is clear that Mattox informed the union representatives that he alone had the authority to hire and that he, or Boykin, would call the various halls for men when needed. When questioned by the General Counsel regarding the hiring of laborers, and upon being presented with his written statement (supra), Mattox testified to the effect that all laborers hired were out of Local 70, that they had referrals which were shown to Mattox or Boykin and then to the job steward , and if a man did not have a referral the steward requested that he be pulled off the job. However, Mattox_ I HUBER, HUNT & NICHOLS,.INC. 357 qualified his testimony by declaring this hiring procedure was not uniformly fol- lowed and he never asked any man whether he had a referral from Local 70. In this respect it is undisputed that Cieutat and the initial labor crew were hired directly by the Company, not through Local 70. It is equally clear that Mattox hired Kamp, Beverly, and Bass as rodmen, without referrals from the local. Again it is plain that the Company hired laborers who had been laid off by other contractors on the job without clearance or referral from Local 70 and that Cieutat and Swanson .selected men for hire at the jobsite. I agree that selected portions of the testimony of Mattox and Boykin, together with -favorable inferences to be drawn therefrom, would tend to support the General Counsel's position that there was an illegal hiring arrangement between the Re- spondents. On the other hand parts of their testimony tend to prove the contrary. Certainly, the testimony of Mattox and Boykin is neither direct nor convincing but rather qualified and at times inconsistent and vague. Considering the entire testi- mony of these witnesses, I am unable to reach the conclusion that this evidence is sufficient to warrant a finding that the Respondents entered into an unlawful hiring agreement or arrangement at the prejob conference. Of course, there is no contention that the Company ever signed the AGC agreement. The General Counsel also argues that Alsup contradicted certain testimony of Mattox and Boykin and stresses the point that Alsup gave the Company the "privilege" of hiring its key personnel. The General Counsel characterizes adverse portions of Alsup's testimony as "last hour" fabrications. I do not agree with this character- ization, but assuming it has some merit it is strictly negative argument and adds nothing to the General Counsel's case. Nor do I attach any significance to the fact that Alsup said the Company had the "privilege" of hiring its key personnel. This strikes me as simply a matter of semantics. Seemingly, if Alsup had stated the Com- pany had the "right" to hire key personnel no illegal motive could be inferred from his remark. Not only does the record fail to show any unlawful hiring agreement or arrange- ment but the hiring procedures followed by the Company prove that it did not secure laborers exclusively from Local 70, nor was union membership or a referral a con- dition of employment. The General Counsel concedes the Company hired at least 11 men without referrals, 8 of whom were not members of Local 70. The General 'Counsel argues that three of these men, Kamp, Beverly, and Bass, were not hired as laborers but as rodmen, that they were not paid the prevailing wage, and the Com- pany was under no obligation to call the hall for them. The evidence shows that rodmen come under the jurisdiction of Local 70, that it referred rodmen to jobs, and that Kamp and Beverly were paid laborers' wages, while Bass, a recent high school graduate, was paid the minimum wage. The General Counsel further argues that all or some of the nonumonmen joined Local 70 after they had been hired, which apparently indicates that union membership was necessary to continued employ= merit. While it is true some nonunionmen joined the local after they had been hired, there is nothing in the record suggesting that the Company or Local 70 re- quired membership in the local as a condition of employment. Considering all the evidence, I find that General Counsel has failed to maintain his statutory duty of proving by a fair preponderance of the credible testimony that, the Respondents entered into an illegal hiring agreement or arrangement or that the Respondents maintained, or engaged in, any unlawful hiring procedures 6 The record clearly shows that McAboy spoke to Cieutat about a job on four oc- casions. The first time was prior to Cieutat's assuming his duties as general labor foreman and Cieutat promised to help McAboy when the job was lined up. Later, in April, McAboy and Stallworth talked to Cieutat who informed them the job had been held up by bad weather but to check with him the next week. On May 3, McAboy and Stallworth checked with Cieutat who stated the job was still held up but to come back the following Wednesday or Thursday, May 11 or 12. On the latter date McAboy and John Tate talked to Cieutat at the jobsite and he told them he thought the job was lined up but he would have to check and if he needed men he would call them. McAboy informed Cieutat "we were going to the hall, which they did. McAboy related a somewhat garbled account of a conversa- tion be had with Lang at the hall, the substance of it being that he could not refer McAboy to the job because he was not paid up, that he had sent Tate, but if Cieutat wanted McAboy it was satisfactory to him. McAboy thereupon returned to the jobsite and complained to Cieutat that although the local had his money, "They wouldn't give me a job." Continuing, he testified, "Will you give me a job?" and 9 N L R B. v Daniel Construction Company, 281 F. 2d 875 (C A. 4). Cf. Valley Steel Products- Co , 111 NLRB 1338, 1345-1346. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cieutat replied, "Yes, IT give you a job. -... Come back Tuesday morning." Certainly there is nothing in McAboy 's testimony remotely suggesting that Cieutat conditioned his employment upon his securing a referral from the local. In fact his testimony is entirely consistent with Cieutat's account of the circumstances under which he was offered employment. Moreover, there is no contention on the part of McAboy that Cieutat mentioned the necessity of a referral card in any of their previous conversations regarding work. But McAboy was not satisfied to simply re- port for work as instructed by Cieutat . Instead McAboy immediately returned to the union hall seeking a referral and, again , on May 16, he asked for a referral which supposedly was refused by Kimble because of union politics . It strikes me McAboy was more concerned with testing his ability to secure a referral , although none was needed , or to build up a case for himself, than working on the job. This is evidenced by the fact that he did not even report or attempt to work on May 17. In this connection , when asked on cross-examination why he did not report, McAboy answered Cieutat had previously told him he needed a referral to go on the job I was not at all impressed with this cavalier statement for it was obviously offered as a weak excuse or alibi for his failure to report for work and is inconsistent with his detailed testimony concerning his conversations with Cieutat . I, therefore, reject this testimony as indicating McAboy had to have a referral in order to work. Since McAboy had been offered a job by Cieutat , and the Company did hire men at the gate, it is reasonable to assume he would have been hired had he reported for work at the jobsite. In any event McAboy's actions preclude any determination of the question of whether it would have been necessary for him to have had a referral to work on the project. McAboy also produced the above -mentioned statement signed by Cieutat, which recites Cieutat told him to get a referral card and report for work on May 17. Admittedly , the purpose of this bare statement was to bolster McAboy's case and was obtained from Cieutat on the pretext that he was sending it to the International Union. Cieutat conceded his signatures appear on the writing , but denied any knowledge of the statement above his signatures . He offered various explanations as to why he may have given McAboy his name on a blank piece of paper, none of which seem reasonable or plausible . I find he signed the statement. I am also convinced , from my observation of Cieutat while testifying , that although he may be a good labor foreman he was wholly unaware of the technicalities involved in hiring hall procedures and he had no idea of the intended import of the statement which McAboy prepared and persuaded him to sign . Of course , if the statement was rea- sonably consistent with the testimony it could be considered as corroborative evi- dence, but it is plainly contrary to McAboy's own version of his conversations with Cieutat regarding employment. As there is no question McAboy was denied a re- ferral card, it is obvious the purpose of his statement was to show an initial request therefor by Cieutat , thereby clinching his case against the Company and Local 70. I have carefully considered the statement along with other evidence in the case and, under all the circumstances , I find the bare assertion regarding the referral has little, if any, probative value. I, therefore, find that Cieutat's offer of employment to McAboy was not condi- tioned upon his securing a referral from Local 70. The General Counsel contends that the officers of Local 70 discriminatorily refused to refer McAboy to the job in order to protect their positions in the forthcoming elec- tion in June . Undoubtedly, McAboy stressed the point that the officers , especially Kimble and Perkins, refused to issue him a referral because they were afraid of the coming election. Kimble and Lang testified they declined to refer McAboy to the job simply because they had received no request from the Company Perkins believed McAboy spoke to him once about work and he gave him a stock reply, he would give him a job. Both Kimble and Perkins denied they discussed union politics with McAbov Boykin and Cieutat testified they never requested the local to refer McAboy to the job and there is no indication at all that Mattox made any such request. Here, unlike most cases of this type, there is no evidence of hostility toward McAboy by representatives of the Company or Local 70 , or that the local was direct- ing retaliatory measures against him . Indeed, all the testimony is to the contrary. McAboy conceded he was on friendly terms with the officers of Local 70 , that he had worked on a union job shortly before the events herein , and was a frequent visitor to the hall. Similarly, Boykin considered McAboy a good worker and would have recommended him for employment and Cieutat actually offered him a iob Accord- ingly, I am convinced that McAhoy injected union politics or the comine election into the case in order to supply some motive on the part of the local officials for their actions, where none existed . Both Kimble and Perkins denied they discussed union SUPERIOR ENGRAVING COMPANY 359 politics with McAboy and Kimble and Lang testified they declined to give him a re- ferral because the Company did not ask them to do so. Boykin and Cieutat testi- fied the Company did not request the local to refer McAboy. I accept the testimony of Kimble, Perkins, Lang, Boykin, and Cieutat and find the local did not refuse to issue a referral to McAboy by reason of union politics or the coming election, but because the Company did not request the local to grant a referral to McAboy, The General Counsel seems to attach some importance to the fact that Lang re- ferred Tate to the job on May 12, and Boykin's testimony he overheard Griffin tele- phone Lang to inquire if McAboy was in good standing. It is true Lang could not recall the details of Tate's referral but I see nothing unusual in his inability to do so. Nor does Boykin's testimony have any bearing on the events of May 12, for he fixed the date of the conversation as sometime in June. It is also clear that Tate reported to and worked for Swanson, not Cieutat. On all the evidence I find the Company did not condition McAboy's employment upon his securing a referral from Local 70, and Local 70 and its agents did not dis- criminatorily refuse to issue a referral to McAboy. Therefore, the Respondents have not engaged in unfair labor practices as alleged in the complaints. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The operations of the Respondent Company occur in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Local 70 is a labor organization within the meaning of Section 2(5) of the Act and the individuals named as Respondents are agents of Local 70 within the meaning of Section 8(b) of the Act. 3. The Respondent Company has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8(a) (1) and (3) of the Act. 4. The Respondent Local 70 and its agents have not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8(b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] Superior Engraving Company and Chicago Photo-Engravers' Union No. 5, International Photo-Engravers' Union of North America, AFL-CIO. Case No. 13-CA-4020. November 17, 1961 DECISION AND ORDER On July 27, 1961, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 134 NLRB No. 44.