Seago Construction Co.

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The constituent members of The Associated Contractors of Essex County, Inc. (herein called the Association ), are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, The Essex County and Vicinity District Council of Carpenters and Millwrights, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent committed unfair labor practices within the meaning of Sec- tion 8(b) (4) (i ) and (ii) (A) of the Act by threatening and then causing a strike of the employees of the constituent employer -members of the Association on July 23, 1962, with an object of forcing and requiring the Association and its employer- members to enter into an agreement prohibited by Section 8(e) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] Harry Paul Tiner, d/b/a Seago Construction Company and John L. McClellan International Association of Bridge, Structural and Ornamental Ironworkers, Local 433, AFL-CIO and John L. McClellan. Cases Nos. 20-CA-2233 and £O-CB-913. March 27, 1963 DECISION AND ORDER On August 23, 1962, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Employer and Respondent Union had not engaged in the unfair labor practices alleged in the complaint as amended and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, General Counsel and Respondent Employer filed exceptions to the Inter- mediate Report and the former filed a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein. 1. We adopt the Trial Examiner's finding that Respondent Em- ployer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction 141 NLRB No. 79. SEAGO CONSTRUCTION COMPANY 873 herein. However, in doing so we rely only on the evidence adduced at the hearing. 2. We adopt the Trial Examiner's finding that Respondent Em- ployer did not discharge John L. McClellan for discriminatory rea- sons and that, consequently, Respondent Union did not cause such discharge in violation of Section 8(b) (2) of the Act.' 3. We find, contrary to the Trial Examiner, that by Job Steward Bellmard's threat to McClellan, pursuant to instructions from Area Steward Madden, to have McClellan removed from his existing em- ployment because he had not kept up his payment of union dues, Respondent Union violated Section 8(b) (1) (A) of the Act? 4. We also find, contrary to the Trial Examiner, that by Job Steward Bellmard's statement to Foreman Dean, subsequently com- municated by Dean to Respondent Employer Tiner, that McClellan could not work any more until his union book had been straightened out, Respondent Union attempted to cause Respondent Employer to discharge McClellan in violation of Section 8(a) (3), and thereby violated Section 8 (b) (2) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union set forth above, occurring in connection with the operations of Respondent Employer described in section I of the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, land tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices in violation of Section 8(b) (1) (A) and (2 ) of the Act, 1 In finding no violation of Section 8(a) (3) and 8(b) (2) in the discharge of McClellan, the Trial Examiner credited the testimony of Respondent Employei 's witness Tiner over that of General Counsel's witnesses McClellan and his wife . As the Trial Examiner made this resolution of credibility in large part on the basis of the demeanor of the witnesses, and as the clear preponderance of all the relevant evidence does not indicate that this resolution was incorrect , we reject the General Counsel ' s contention that the Trial Examiner's credibility resolution should be overruled . Standard Dry Wall Products, Inc, 91 NLRB 544 , enfd. 188 F. 2d 362 (C.A. 3). 2 The events in question occurred in the State of Nevada which has a right-to-work statute The Trial Examiner refused to find this threat by Bellmard unlawful because he held that neither Madden nor Bellmard had authority to demand , on behalf of the Union, the discharge of any employees. The Board has held in numerous cases that a union is re- sponsible for the conduct of stewards similar to that of Madden and Bellmard in this case, e g., International Association of Bridge, Structural , etc, Local 600 (Bay City Erec- tion Company, Inc.), 134 NLRB 301, 306; International Hod Carriers, Buildinq, etc., Local No 41 (A. E. Anderson Construction Company ), 129 NLRB 1447, 1456 , enfd 295 F 2d 657 ( C.A. 7) Accordingly, we find that Respondent Union was responsible for the threat by Steward Bellmard and that by such threat Respondent Union violated Section 8(b) (1) (A ). International Hod Carriers, Building, etc, Local No. 41 (A E Anderson Construction Company ), supra. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall order it to cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. ADDITIONAL CONCLUSIONS OF LAW 3 4. By threatening John L. McClellan with loss of employment be- cause he had not kept up his payment of union dues, Respondent Union restrained and coerced him in violation of Section 8(b) (1) (A) of the Act. 5. By attempting to cause Respondent Employer to discharge John L. McClellan because he had not kept up his payment of union dues, Respondent Union violated Section 8(b) (2) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Union, International Association of Bridge, Structural and Ornamental Ironworkers, Local 433, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act by threatening employees with loss of employment because of nonpayment of union dues. (b) Attempting to cause Respondent Employer to discriminate against John L. McClellan or any other employee in violation of Section 8 ( a) (3) of the Act. 2. Take the following aff=irmative action which the Board finds will effectuate the policies of the Act: (a) Post at its offices and meeting and hiring halls, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by Respondent Union's representative, be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Twentieth Region signed copies of the attached notice marked "Appendix" for posting by Re- 3 Conclusions of Law Nos 4 and 5 of the Decision and Order are substituted for Con- clusion of Law No. 4 in the Intermediate Report. A In the event that this Order is enforced by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals , Enforc- ing an Order" shall be substituted for the words "Pursuant to a Decision and Order." SEAGO CONSTRUCTION COMPANY 875 spondent Employer, if willing, at its offices and jobsites within the 'jurisdictional area of Respondent Union. (c) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that Respondent Employer violated Section 8(a) (3) and (1) of the Act. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL 433, AFL-CIO, AND ALL APPLICANTS FOR EMPLOYMENT Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, you are notified that : WE WILL NOT restrain or coerce employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act by threatening loss of employment because of nonpayment of union dues. WE WILL NOT attempt to cause Harry Paul Tiner, d/b/a Seago Construction Company, to discriminate against John L. McClellan or any other employee in violation of Section 8 (a) (3) of the Act. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON- WORKERS, LOCAL 433, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Any person may communicate directly with the Board's Regional Office, Room 703, 830 Market Street, San Francisco 2, California, Tele- phone No. Yukon 6-3500, Extension 3191, if he has any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint, dated May 4, 1962,1 as amended at the hearing, alleges that International Association of Bridge, Structural and Ornamental Ironworkers, Local 'The charge in Case No. 20-CA-2233 was duly filed on February 23, 1962, and the charge in Case No. 20-CB-913 was duly filed on January 30, 1962. ,876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 433, AFL-CIO, herein called Respondent Union , on or about December 15, 1961, attempted to cause and did cause Harry Paul Tiner, d/b/a Seago Construction Company, herein called Respondent Employer , to discharge John L. McClellan, -the Charging Party herein, by notifying Respondent Employer that McClellan was not a member in good standing in its organization and by requesting his discharge, and that on or about December 18, 1961 , Respondent Employer terminated McClellan's employment because he was not a member in good standing in the Union, thereby engaging in unfair labor practices-Respondent Employer within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as -amended from time to time, 136 Stat. 136, herein called the Act, and Respondent Union within the meaning of Section 8(b)(1) (A) and (2) of the Act. Each Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was held at Las Vegas, Nevada, from June 19 through 21, 1962, before Trial Examiner Howard Myers. The General Counsel -and each Respondent were represented by counsel who participated in the hearing. Full and complete opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before July 13, 1962.2 Briefs have been received from the General Counsel and from •counsel for Respondent Union. Said briefs have been carefully considered. Incorporated in the General Counsel's brief was a motion reading as follows: I-The Motion To Amend the Complaint It is hereby moved that the Complaint be amended as follows: 1. Allegation II D of the Complaint be changed to allegation II E. 2. A new paragraph D be inserted in allegation II, to read: "During the past 12 months, Seago performed services at Mercury, Nevada for the Atomic Energy Commission, pusuant to a subcontract with a gross value in excess of $50,000." Under date of August 1, 1962, counsel for Respondent Employer wrote me a letter, copies of which were duly sent to the General Counsel and to counsel for Respondent Union, opposing the granting of said motion. Said letter is received in evidence as Trial Examiner's Exhibit No. I. The said motion is hereby granted and the complaint is deemed to be further amended in accordance with said motion and the answer of each Respondent is -deemed to be amended to deny the allegations contained in the aforesaid motion. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF RESPONDENT EMPLOYER Respondent Employer, Seago Construction Company, is owned and operated by Harry Paul Tiner, and his principal offices and place of business are located in Dallas, Texas. Tiner, during all times material herein, has been engaged in con- struction work in various States of the United States, including a construction project located in Mercury, Nevada, Tiner's only project here involved. Tiner's Mercury, Nevada, job, which was started about November 23, 1961, and completed on March 4, 1962, involved the construction of a 1,527-foot steel tower, the wold's highest, for the Atomic Energy Commission, an agency of the United States Government, herein called AEC. AEC entered into a contract with Dresser Idaco Company, located at Columbus, Ohio, herein called Dresser, and which Respondent Employer concedes , for the purposes of this hearing, to be engaged in interstate commerce , pursuant to which contract Dresser was to fabricate and construct the tower in question. Dresser entered into a subcontract valued in excess of $50,000, with Respondent Employer for the erection of said tower, at AEC's Mercury, Nevada, testing site; said tower was designed and constructed by or for AEC and is being used by AEC to house equipment to enable AEC to "produce radiation of the same nature" as one "would get from a nuclear weapon ," but without the use of an atomic bomb. 2At the request of counsel the time to file briefs was extended to and including July 27, 1962. SEAGO CONSTRUCTION COMPANY 877 During 1961, Respondent Employer performed construction contracts at jobsites located outside of the State of Texas for which he received between $100,000 and $200,000.3 Upon the basis of the foregoing facts, I find, in line with established Board au- thority, that Respondent Employer is engaged in, and at all times material was -engaged in, business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that his operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respond- ent Employer. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged discriminatory discharge of McClellan 1. The pertinent facts In December 1960, McClellan applied for membership in, and on January 24, 1961, became a member of, Local No. 760, a Pueblo, Colorado, local affiliated with the International Association of Bridge, Structural and Ornamental Ironworkers. On October 1, 1961, McClellan was suspended by that local because of nonpayment of dues. In August 1961,4 McClellan and his brother, Floyd, and their respective wives .arrived in Las Vegas, Nevada.5 Within two days after their arrival in Las Vegas, McClellan and his aforesaid brother called at the home of Milton Madden,6 the Union's area steward, whose territory included the Mercury jobsite, introduced themselves, and inquired about working conditions in the Las Vegas area. Madden replied that working conditions were generally good, but at that particular moment he had no job for either of the McClellan brothers, adding, however, that if they were qualified journeymen iron- workers, he believed that before the end of that day he could get them jobs. Madden then instructed them to give his wife, who was present at this interview and who, in Madden's absence, dispatches persons to jobs, their names and social security -numbers, which they did. They also gave Mrs. Madden the address of the motel -at which they were then staying. Madden did not ask for, nor did he receive, any credentials from the McClellan "brothers at the time of the aforesaid interview. Nor did Madden discuss union membership with either of them at that time. The fact that Madden did not inquire about their union memberships seemed quite odd to Floyd McClellan for he re- marked, upon rejoining his wife and his brother's wife, the two ladies having waited outside Madden's home while the brothers were registering for jobs, "That was the first local he had ever been in in his life that did not ask for your union book." About 3 days after arriving in Las Vegas, the Union referred McClellan to a job which R. E. Atckison Company, Incorporated, was there performing at the afore- mentioned Mercury jobsite. McClellan worked on the Atckison job for about 2 or 3 weeks. He quit that job because Atckison failed to meet its payroll. McClellan then filed a lack-of-wages payment grievance with Madden and requested Madden to handle the matter for him. McClellan and Madden discussed this grievance on several occasions and each time Madden informed McClellan that he had attempted to collect the money due but was unable to see "that man." On a later occasion, Madden told McClellan that he had seen Atckison's "pusher" who advised him (Madden) to see Atckison.7 McClellan, shortly after quiting the Atckison job, was referred by Madden to 'S & S Construction Company, a Las Vegas, Nevada, employer. McClellan worked for S & S for about 5 to 7 days. He was laid off because of a reduction in force. As soon as McClellan was laid off the S & S Construction Company job, he registered for work with the Union and was referred by Madden to A. J. Edwards Precision Machinery and Construction Company, herein called Edwards, another More than 50 percent of Tiner's business is work performed for Dresser. Unless otherwise noted, all dates hereinafter mentioned refer to 1961. John and Floyd McClellan arrived in Las Vegas within a day of each other. Madden, also known as Sam Madden , uses his home as the Union's Las Vegas area dispatch office. 7 McClellan eventually received some of the money due him from Atckison, but the record is silent as to whether the partial payment was due to the Union's efforts or not. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Las Vegas job. McClellan worked for Edwards for about 2 weeks and was laidi off because of a reduction in force. After being laid off the Edwards job, McClellan "immediately" registered for work with the Union. He was then referred by Madden to Worldwide Construction Company, which was then performing work at Mercury, Nevada. McClellan worked on that job 2 days, at which time the work Worldwide was doing at Mercury was completed. As soon as the Worldwide job was finished, McClellan registered for work with, the Union. Madden again referred McClellan to an Edwards job. McClellan. worked on this second Edwards job from about October 25 until about mid-November. McClellan was laid off this job because of reduction in force. Between the time McClellan was laid off the Edwards job the second time and the night of November 27, he telephoned the Madden residence quite often seeking work. As noted above, Tiner started work at the Mercury project toward the end of November. At the commencement of said job, Tiner appointed Gerald Norman as job superintendent and Oscar Dean as job foreman. Both Norman and Dean had` been in Tiner's employ for many years prior to the Mercury job and were part of his permanent organization. When the job in question was about to get under way, Norman telephoned Madden_ and requested two ironworkers. Madden furnished Sam Bellmard and Bob Osowski, both of whom were hired by Norman and who began working at the Tiner Mercury job on or about November 23. Madden appointed Bellmard job steward on the Tiner job. About a week after the Tiner Mercury job began, Norman requested Bellmard to, ask Madden for an additional man. Bellmard told Norman that McClellan was a tower good hand because he had worked with McClellan on other jobs. Thereupon, Bellmard telephoned Madden and requested that McClellan be dispatched to the job. On the night of November 27, Mrs. Madden telephoned McClellan and informed him on the Tiner job, adding that McClellan should present himself at the Waggoner Secretarial Service in Las Vegas early the next morning where he would have to, fill out certain forms in order "to go through security again." Shortly after 8 a.m., on November 28, McClellan went to Madden's residence, picked up his referral slip, and proceeded to Waggoner's. At Waggoner's, McClellan met Norman, gave him the referral slip he had received from Mrs. Madden, and filled out the necessary security clearance forms, and Norman and McClellan then proceeded to the Tiner Mercury jobsite. On November 28, McClellan commenced working for Tiner "unloading the steel, shaking it out, [and] putting it together." On Tuesday, December 12, Madden came to the Tiner Mercury jobsite and had a conversation with Bellmard, which McClellan testified he overheard 8 According to McClellan, Madden instructed Bellmard to "Pick up these men's books, they're going to have to start paying dobie"; that Bellmard replied, "Yes, sir. However, you probably have already got [McClellan's] haven't you?" and that after Madden had replied in the negative, Madden drove away. McClellan testified further that after Madden had left the jobsite, Bellmard asked him to bring his union dues book to the job the next morning; that he said he would do as requested, adding that he would like to see Bellmard after lunch; that after lunch he told Bellmard that his dues book "was outdated. It is dead"; and that Bellmard told him "to bring it away"; that the following morning, December 13, Bellmard asked him, in the presence of Dean, Osowski, and employee George Mullins, for his dues book; that he handed it to Bellmard, who "leafed through it, observed it momentarily, snapped it shut, and returned it himself to my shirt pocket, saying, `It's no good, Johnny. It looks to me you're automatically out"'; that he then asked Dean, "Do I still work for you?" that Dean replied, "Johnny, as far as I'm concerned, you still do"; and that he then said to Bellmard, "Sammy, I'm going to work this morning," to which comment, Bellmard said. "As far as I'm concerned Johnny, I haven't the authority as of now to pull you off from [sic] this job, but after I make my report to the area steward tonight, I think you'll not work another day." 9 8 Madden, during the period between November 28 and December 12, had visited said jo'bsite about three times. 9 According to a letter from the Pueblo, Colorado, local under date of December 12, McClellan had written said local on December 7, inquiring how he could put his "book in good shape." The local, in said December 12 letter, informed McClellan that he was suspended as of October 1, for nonpayment of dues and that McClellan would not only have to pay the local $164 to be reinstated in good standing, but would have to appear before its examining board in Pueblo and "pass the examination " SEAGO CONSTRUCTION COMPANY 879 McClellan further testified on direct examination that about 9:30 the following morning, December 14, Bellmard arrived at the jobsite about 21/2 hours late in a drunken condition; 10 and that the following ensued: He (Bellmard) staggered over to me and . . . called to Oscar Dean... . Then Oscar walked over pretty close to him ... . He (Bellmard) walked over to me, like I said, and put his finger in my face and spoke. I got ready to defend myself. I wore one of those ironworkers' belts. It's called skeltbelt. You can take it off, and I took off my ironworker belt and got ready to defend myself. And I said, "Sammy, let me tell you something, Sonny, as far as I'm concerned, if you had come to me in a sober condition, like my job steward, I might have listened to you, but you have come to me drunk and you're putting your finger in my face. . This business of taking me to the front gate won't be the easiest thing you've done this week. Oscar Dean is my foreman and he says I still work here." Whereas, [sic] he began to cool down a little bit, it seems like. He kind of turned around to Oscar, and he said to Oscar rather loud-like, he said, "Oscar, would you take me to the front gate?" Oscar then ordered Mr. George Mullins to drive [Bellmard] to the front gate. I continued working. On cross-examination by counsel for Respondent Employer, McClellan testified the incident referred to immediately above as follows: Q. Mr. Norman was not on the job at that time? A. That's right. Q. Mr. Dean was the top man? A. Yes, he was. Q. You turned to him and you asked him if you should continue working; isn't that right? A. Yes, sir. Q. He said to you that there was work to be done and he wanted you to do it; isn't that correct? A. Or words to that effect, yes, sir. Q. Mr. Bellmard was standing right there at the time, right? A. Yes, sir. Q. So that you would agree, I am sure, Mr. McClellan, that Mr. Dean did not fire you at that time? A. Mr. Dean? Q. Yes. A. Well, no, sir, he didn't fire me. Q. All right. In any event, Mr. Dean did not tell you that you should not report for work the next morning, did he? A. No, sir, Mr. Dean never told me not to report for work Q. And you fully expected and intended to report for work the next day; isn't that correct? A. Yes, I did. * * * * * * * Q. He (Bellmard) said to Mr. Dean in your presence, "I'm through," didn't he? A. Yes, sir. But, there was a little something else happened there, sir. Q. At that time? A. Yes, sir. Q. That you have not brought out on your direct examination? A. I don't believe I brought it out, sir. I don't recall. Q. Is that something that Mr. Bellmard said at the time? A. Yes, sir. Q. Do you wish to state that now? A. Yes, sir. Q. Go ahead. A. After Mr. Bellmard made these vile remarks to the foreman, Mr. Oscar Dean and Mr. Osowski, Ironworkers, intervened and quieted Bellmard down. 1OAsked by the General Counsel how he knew Bellmard was intoxicated, McClellan re- plied, in part, "He hadn't control of his faculties. He staggered, he waved his arms, he used profane language, [and] he was spit-tongued " 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He had in effect quit, it is true . Mr. Osowski quieted him down, and he (Osowski) said-"Sam, let me talk to you a minute now before you get off on the wrong leg." Or words to that effect. He said, "You know what Sam 11 said if you blowed this job, didn't [sic] you?". . . Bellmard then turned back, to Oscar and he said, "Oscar, can I just go to the front gate?" Oscar said, "Yes, you go to the front gate." . . . he told me he was fired, yes. Q. All right. In any event, Mr. McClellan, at this time you were not fired, discharged, laid off, or anything of that nature by Mr. Dean, right? A. No, sir, I wasn't. Q. As a matter of fact, as you described the conversation and the state- ments that were made back and forth, Mr. Bellmard's remarks were-and actions, if I may add-were directed to you personally, correct? A. Part of them, yes sir. Q. He did not actually stand there and say to Mr. Dean and point to you and say, "Fire this man right here and now" or anything, did he? A. No, sir, he didn't say that. Q. Nor did he say to Mr. Dean at that point, "The Union insists that the Company fire Mr. McClellan or we'll put a picket line out in front of this place" to him, did he? A. No, sir, he didn't say that either. Q. Or that "We are going to strike the job if you don't fire Mr. McClellan?" A. No, sir, he didn't say that. Q. But there is no doubt in your mind, Mr. McClellan, that Mr. Bellmard wanted you off the job, personally, right? A. He made that pretty obvious, yes, sir. Q. By whatever expressions or mannerisms he used, he was endeavoring to persuade you that you ought not to remain on the job if you didn't pay dues to the Union, right? A. He didn't indicate paying dues to the Union. He indicated that I should not remain on the job, period. Q. Isn't it a fact, Mr. McClellan, that neither Mr. Bellmard nor Mr. Madden ever instructed you to pay dues to Local 433 or to Local 750 at Colorado? A. That is a fact. They did not instruct me to. Q. At no time did they? Did the Union ever tell you that you had to pay- dues to either of those two Locals? A. Dues, no, sir. Tiner employees were not paid on Monday, December 11, because Norman had gambled away the payroll in Las Vegas.12 The following day, December 12, Dean telephoned Tiner's Dallas, Texas, office- and reported the payroll loss to Office Manager McLarty, who in turn reported the matter to Tiner who was then in Milwaukee, Wisconsin, supervising one of his construction jobs. At the time McLarty informed Tiner of the lost payroll he also told him that the Mercury crew had been on the job for about 5 or 6 weeks and had only unloaded about five or six carloads of material, which was only a fractional part of the mate- rial needed; that most of the material which had been received consisted of "columns," and, hence, the crew could not do anything with that material at that time; that the job was not progressing as planned; that the crew was not turning out a sufficient amount of work and "Dean was at a loss as to what to do"; that three local men had been hired and because of the difficulty in obtaining the proper amount of materials the crew was unable to keep busy; that the job, because of the lack of necessary materials and the fact that there were six men on the payroll,13 was costing four or five times what it normally would have cost; and that "the Atomic Energy Com- mission were chagrined with the fabricator, Dresser Idaco, because of the delay in delivery [of the materials to Tiner] . . . and that the fabricator's representative was [presently] in [Las Vegas] and he was chagrined with Seago Construction Company because of the apparent lack of progress on the job " Immediately after talking to McLarty, Tiner telephoned Dresser's representative in Las Vegas and received his report about the lack of progress on the job. Based upon McLarty's report and that of Dresser's representative, Tiner, decided to discharge the entire crew on his Mercury job. In furtherance of this decision, Tiner directed Sam Thompson, a member of his permanent staff and who was then work- 11 Meaning Madden. L Said payroll amounted to about $1,400. In addition thereto, Tiner had to pay his employees between $200 and $500 as "waiting time" because they were not paid on time 11 Namely, Norman, Dean, Mullins, McClellan, Bellmard, and Osowski. SEAGO CONSTRUCTION COMPANY 881 ing on the Milwaukee job, immediately to proceed to the Mercury jobsite and to, take over Norman's job. Tiner then instructed the foreman of the Milwaukee job "to expedite the closing of that job and for that crew (consisting of four or five ironworkers) to [go] right [to the Mercury job] as rapidly as possible." 14 Tiner then made arrangements to leave Milwaukee for Las Vegas. On December 14, Tiner left Milwaukee and flew to Las Vegas, arriving there that, night. He was met at the airport by Dean and Mullins. Tiner, Dean, and Mullins then went to Tiner's hotel room and discussed the status of Tiner's end of the Mercury job, the employees working thereon, the loss of the payroll, and Norman's disappearance from the job. Dean testified on direct examination by the General Counsel, that during his dis- cussion with Tiner, referred to immediately above, he brought the Bellmard-Mc- Clellan incident of that day to Tiner's attention; that he informed Tiner that Bellmard had told him that McClellan could not work on the Tiner job until McClellan got his union book straightened out; and that Tiner remarked that he "was going to get in touch with the business agents in Amarillo" and "would try to get things straightened out all around the job through the Union." 15 After his talk with Dean and Mullins on the night of his arrival in Las Vegas, Tiner came to the conclusion that "possibly" the situation at the jobsite "was not actually where [he] had thought it was, entirely with [Dean] and Norman, but consisted of a whole series of circumstances and conditions," and hence he would not fire his entire Mercury crew, but would keep one of the three local men and let the other two go.16 1* As a matter of fact, in addition to the men transferred from the Milwaukee job, Tiner hired one man from Nebraska, one from Utah, two from Alabama, one from North Carolina, and one from Oklahoma. Both Norman and Dean were retained, but in nonsupervisory jobs. 15 The fact that Dean, at no time, ever gave any serious consideration to, or ever in- tended to discharge McClellan because of the above referred to Bellmard-McClellan in- cident is evidence from the following portions of his cross-examination: Q. (By counsel for Respondent Union.) Mr. Dean, yesterday you testified about a conversation between yourself, Mr. Bellmard , and Mr. McClellan, on Wednesday, be- fore Mr. Tiner came to town? A. Yes, sir. Q. Isn't it true, sir, that Mr. McClellan turned to you and asked whether he still had a job, and that you told him, yes, you still have a job? A. Yes, sir. Q. And isn't It also true that Mr. Bellmard on that day was obviously drunk? A. To the best of my knowledge , he was. • • * k • R i Q. (By counsel for Respondent Employer.) Mr. Dean, referring to that same occa- sion (the Bellmard-McClellan incident) as far as you knew, Mr. Dean, whatever. Mr. Bellmard might have had against Mr. McClellan, he was taking it up with Mr. McClellan and not with the Company ; isn't that correct? A. Yes, sir. Q. That if Mr. Bellmard himself did not want Mr. McClellan to stay on the job, at least, you wanted Mr. McClellan to stay on the job; Is that right? A. Yes, sir. Q. You didn't fire Mr. McClellan? A. No, sir. Q. You didn't have any intention of firing Mr. McClellan? A. No, sir. Q. You didn't tell Mr. Tiner when you saw him that he should fire Mr. McClellan?_ A. No, sir. s ♦ ♦ r r r t Q. Would it be fair to say, Mr. Dean, that you did not make any special point of bringing to Mr. Tiner's attention what Mr. Bellmard had said on the job? A. No, sir. Q. Would it be fair to say, Mr. Dean, that in relationship to these other job factors, such as the missing payroll and the overtime that was due the men, and the lack of progress on the job, that you considered Mr. Bellmard's statement and that incident between Bellmard and McClellan as a relatively minor matter? A. Yes, sir. "'According to his contract with the Union's parent organization Tiner had to have at least one local man on each of his jobs. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 16 or 17, Bellmard and Osowski went to Dean's home and inquired of him where they could contact Tiner. Dean gave them the name of the hotel at which Tiner was staying. 17 On Sunday, December 17, Madden, on his way from work happened to drive up to a gasoline service station in the small village where McClellan was then residing and there the two met. Madden and McClellan then had a conversation which was overheard, in part, by McClellan's wife and Gilbert Bryson, another resident of said village, and who was then working for another contractor at the Mercury project. McClellan testified that during the above referred to conversation Madden told him that he had told Bellmard to get McClellan off the Tiner job; that Madden asked whether Bellmard had delivered the message to which question he answered in the affirmative; that he then told Madden that Bellmard had come to the job the previous Thursday in a drunken condition and used profane language in an attempt to get him off the job; that Madden replied that he did not intend that the message should have been delivered in that manner, adding, "The message stands. I don't want you on the job tomorrow morning"; and that he then told Madden he intended to report for work on the Tiner job the following morning as usual. McClellan testified further about the above referred to conversation as follows: I told him that I intended going to work, if he would not listen to a proposal that I had for him. I said, "Sammy, I have been trying to get a-hold of you for almost a week on the telephone. Now, I either get no answer at all, or your wife informs me that you're staying at the Mercury Project. The evenings I call, I can never get hold of you, and I've been wanting to talk with you." Whereas, I proposed [sic] a letter.1e He took the letter, opened it, and I gathered he read it-looked like he was reading it, folded it, and handed it back to me, and said, "Well, what's that to me? Because, it says in here for you to go to Pueblo, Colorado." I said, "Sammy, you see what the man says, I owe $164.00." He said, "I read that." I held my hand out to my wife, and she handed me an envelope containing $164.00 that we had kept for this purpose in case we could find Madden. And I said, "Sammy, there's $164.00 in this envelope." He said, "I can't take that money. I'm not going to take it." I said, "Sammy,"-Incidentally, he said, "Do what the letter tells you, go back to Pueblo, Colorado." I said, "Sammy, I can't make the trip. I only drew just very little bit more than $200.00 for my first pay." I said, "If you will let me stay for one more week" "Sam, one more week." He said, "I can't do it, Johnny, it's liable to"- Q. It's liable to what? A. "Dog my whole job off." Q. What does that mean? A. Cause a work stoppage. On Monday morning, December 18,19 pursuant to previous arrangements with -Dean, Tiner went to Dean's Las Vegas home and there met with Dean, Bellmard, -and Osowski.20 After talking a few minutes with Bellmard and Osowski, Tiner .decided to terminate Bellmard's employment. Tiner then made out a check for the wages due Bellmard, handed it to him, saying that his services were no longer needed. Bellmard thereupon signed the usual "pay slip." Bellmard then drove with Tiner to Indian Springs, Nevada, the small village in which McClellan was then living in order to introduce Tiner to McClellan and also -to go to the Tiner Mercury jobsite to pick up his automobile and gear. Upon arriving in Indian Springs, Bellmard proceeded Tiner into the Oasis Cafe, the place where McClellan was customarily picked up in the mornings by the other 17 Tiner did not meet either Bellmard or Osowskl until the morning of December 18, and that meeting took place at Dean's then Las Vegas residence. 18 December 12 letter from the Pueblo local to McClellan. 1e This was the first workday after Tiner's arrival in Las Vegas. His employees did not work on Friday, December 15, because of inclement weather. 28 Each workday Bellmard and Osowski met at Dean 's home and from there the three went to the jobsite. SEAGO CONSTRUCTION COMPANY 883 members of Tiner's crew and driven to the Mercury job. When Tiner walked into the cafe, Bellmard introduced him to McClellan and to McClellan's wife. What transpired after Tiner entered the cafe McClellan testified that, after Bell- mard had introduced Tiner to him and to his wife and the introductions had been acknowledged , Tiner said, while writing out a "pay envelope or check," "McClellan, I'm sorry to have met you under such circumstances , but I'm going to have to let you go"; that he asked , "Is something wrong with my work, sir ?"; that Tiner replied, "McClellan, far from it. I have had good, very good reports on your work trom both Mr. Oscar Dean and Mr. Gerald Norman. 1 have not had anything but good reports on your work, sir; no, sir, it is not that. I have had a talk with Mr. Sammy Madden and Mr. Red Lansford, who is the Assistant Business Agent for Local 433, and they have asked me to let you go"; that after Tiner finished writing out a pay envelope and check, Tiner passed the pay envelope over to him inquiring, "Does that look1right?"; that when he replied in the affirmative , Tiner asked him to sign the envelope ; that he could not recall the amount appearing on the envelope but that it was about $200 or $250, which represented the "current week's pay"; that in addition to aforesaid $200 or $250 check, which Tiner then handed him, Tiner also gave him a check for "Seventy-something dollars" which was for "the last days" bf his working for Tiner which included "travel time, subsistence, and what-have-you, back to my hiring point in Las Vegas"; that after he had signed the pay envelope, Tiner then handed him the second check, inquiring, "Does that appear to be in order for your final pay?"; that after advising Tiner that the amount appearing on the check seemed to be correct, he asked, "Could I have same reasons for your terminating me? You have said that it was not because of my work"; that he pushed the pay envelope toward Tiner, saying, "I just imagine, Mr. Tiner, that the first thing these people do downtown when you apply . . . for unemployment compensation, the first question they ask [who was] your former employer and reasons for sep- aration. I would not like those people to think that, you know, that I wouldn't have a reason for termination . It would just have to cause me time to come and find you and get it. Would you please be good enough to put something on [the pay envelope ] for stating your reasons for terminating me?"; that Tiner "considered it for a moment, poised his pen, looked at me , and then said, "How would `no union clearance' be"; that when he replied "If that's your reason; sir, that's fine," Tiner wrote on the pay envelope "No union clearance" and handed the pay envelope to him; and that Tiner then said, "McClellan, if, [and] when you can get this thing straightened up with the union, I'll be more than happy to rehire you, if I am still hiring people." McClellan testified further that after the matters referred to immediately above had taken place, "Mr. Tiner suggested," that he and Bellmard drive to the Tiner jobsite so that they could get their gear and Bellmard could get his automobile; that the three of them left the cafe for the jobsite ; that en route, Bellmard remarked, "Mr. Tiner, this business back in the cafe brings something to my mind, Mr. Tiner. I'd appreciate it very much if you would change the reasons for your having terminated me to assist me in drawing unemployment compensation . I'm never going to put [down ] a reason, `Fired me'," that Tiner said to Bellmard, "I 'm not going to do that, Sammy, I fired you for the reason stipulated , and it stands as is"; and that Tiner remarked during said trip to the jobsite, "McClellan , I'm real sorry that this thing had to come up, but I have an agreement with this Ironworkers Union , and I must abide by their laws, by-laws, and what-have-you, and their requests. I know you can understand this. However, as I said earlier in the Oasis Cafe, if and when you can straighten this thing out with the Union, if I'm still using people, I'll be only too happy to rehire you." With respect to what took place at the Oasis Cafe on the morning of December 18, Mrs. McClellan testified that Tiner stated that he had to let her husband go; that when her husband asked Tiner, to quote from Mrs. McClellan's testimony, "Could he have a reason why, was there something wrong with his work. Tiner replied, `No, I have had excellent reports on your work, but I have had a talk with Mr. Sam Madden and Mr. Red Lansford and they have requested your discharge' "; that she saw Tiner make out two checks and write on the pay envelope "No union clear- ance"; that Tiner wrote on the pay envelope "No union clearance" when her husband asked for the reason for her husband 's termination ; that Tiner also stated that he would gladly rehire her husband as soon as her husband's union book had been straightened out; and that Bellmard asked Tiner "to change the reasons for his termination" and Tiner "refused" Bellmand's request. Mrs. McClellan, however, could not recall any conversation with respect to unemployment compensation by anyone present during the aforesaid Oasis meeting. 708-006-64-vol. 141-57 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tiner credibly testified that when he discharged Bellmard on the morning of Decem- ber 18, he was not entirely sure whether he would retain McClellan in his employ or not; that while en route to Indian Springs with Bellmard he did not discuss any phases of McClellan's Union status with Bellmard and kept their conversation strictly to matters "pretty well neutral." Tiner further testified that after entering the Oasis Cafe that morning, December 18, and introductions having been made, the McClellans, he and Bellmard sat down and ordered coffee; that he "proceeded to get into the business of the current pay day and to discuss the job and various things as Mr. Dean and the other two men 21 and I had done when I first met them"; that the conversation between him, Bellmard, and McClellan centered around Bellmard's and McClellan's statements that Tiner's job at Mercury "was running along very smoothly and that everybody should be quite happy and that they both enjoyed working out there. They liked Mr. Dean and they liked Mr. Norman"; that then McClellan gave a short resume of his quali- fications, adding that he would like to become a permanent member of the Tiner staff; that as a result of McClellan's remarks he came to the conclusion that McClellan was a better talker than a worker and then and there decided to terminate him and so advised him; that McClellan then remarked "they" wanted him off the job, adding, to quote from Tiner's testimony, "he felt that I was laying him off because of his difficulties with the union"; that, to further quote from Tiner's testimony, " since I had not contacted the Union, I did not inform Mr. McClellan that that was the case. In fact, I should have and would have informed him that it was not the case, because I had not contacted the Union [up to] that point"; and that the words, "No union clearance" were written on McClellan's pay envelope at McClellan's specific request because, as McClellan explained, such a reason for a discharge would ex- pedite matters at the unemployment compensation office. Tiner further testified that at no time did Bellmard ask him to change the reason for his termination. In fact, Tiner emphatically denied that he ever gave Bellmard any written reason for his dismissal. In the light of the entire record in this case, all of which has been carefully read, and parts of which have been reread and rechecked several times, and being mindful of the emphasis which the parties have placed upon the credibility problems here involved, of the fact that testimony was given regarding events which occurred months prior to the opening of the hearing herein, and of the fact that very strong feelings have been generated by the circumstances in this case, I find Tiner's version of what was said and done at the Oasis Cafe on the morning of December 18 to be substantially in accord with the facts. This finding is supported by the fact that Tiner particularly impressed me as being one who is careful with the truth and meticulous in not enlarging his testimony beyond his memory of what occurred. On the other hand, the McClellans gave me the impression that each was studiously attempting to conform his or her testimony to what each considered to be to the best interest of McClellan 22 Madden credibly testified that on the evening of December 18, 19, or 20, he stopped at the Oasis Cafe for a beer on his way from work; that he met McClellan and Mrs. McClellan in said cafe; that McClellan told him of losing his job with Tiner; that McClellan offered to buy him a drink, but he refused saying, No, I will buy you and your wife a drink"; that before leaving the cafe he told McClellan to 21 Meaning Osowski and Bellmard. r' I am not unmindful of the fact that the affidavit given by Tiner to a Board field examiner on February 14, 1962 , coni.ains statements which appears to be at variance with the testimony he gave at hearing in the instant case . A careful reading of Tiner's testi- mony herein and the statement in said affidavit convinces me that whatever variances there may be was fully explained by Tiner under the long and searching examination by the General Counsel to be no more than what Tiner meant by the words he used in said affidavit . In addition , it seems to me very unlikely that a man of Tiner's business acumen and a person who had dealings , over a period of 14 years or more, with various labor organizations representing his employees would say to an employee he was discharging, Especially one whom he had never met prior thereto, that the termination was brought about because the Union demanded it when no such demand had been made . This is Specifically true in this case because Tiner had no contact whatsoever with any union official, except Bellmard , prior to his meeting with McClellan on December 18. In addi- tion, Mrs. McClellan testified that at the cafe, Bellmard requested Tiner to change the reasons for Bellmard's discharge whereas McClellan testified that said request was made while he, Tiner, and Bellmard were en route to the Tiner jobsite. SEAGO CONSTRUCTION COMPANY 885 , register on the Union's out-of-work list because there was a possibility of a job; and that McClellan made no comment with respect to said suggestion and has not regis - tered for work nor sought a job through the Union since December 18. Under date of May 30, 1962, about 3 weeks prior to the opening of the hearing in this case, McClellan sent a letter to the Union's main headquarters in Los Angeles, California , requesting a "check for vacation money paid into the fund" for his benefit by Worldwide Construction Company, S & S Construction Company, Edwards, Tiner, and Atckison. Under date of June 5, the Union replied as follows: In reference to your letter dated May 30, 1962, whereby you requested this Local Union to forward check for vacation monies paid into the fund for you while employed in Nevada by five various contractors during 1961: Please be advised that this fund is administered by the M. A. Cornell Com- pany, 412 West 4th Street, Los Angeles 14, California. The Administrator is now in the process of drafting up applications that will be available in the offices of Local Union on or about August 15, 1962. If you will contact this office by mail or in person after the above date, we will be glad to mail the application to you which will explain how to apply for your vacation monies. 2. Concluding findings Upon the entire record in this case I am convinced , and find, that the General Counsel has failed to establish, by substantial evidence, that Respondent Union unlawfully attempted to cause or did cause Respondent Employer to discharge McClellan or that the Respondent Employer unlawfully discharged McClellan. Assuming, arguendo, that Tiner did, in fact, tell McClellan on December 18, at the Oasis Cafe that he was being discharged at the behest of the Union, that state- ment by Tiner cannot properly bind Respondent Union for there is not an iota of credible evidence in the record to show any agency connection between Respondent Union and Tiner nor any credible evidence of any authority of the bestowing by Respondent Union upon Tiner to act in its behalf. In fact, the credible evidence clearly establishes that prior to McClellan's discharge , Tiner had no contact with any union official with respect to McClellan except Job Steward Bellmard , who at no time made any demand upon Tiner to discharge McClellan. The fact that on December 14, Bellmard came to the Tiner jobsite in a drunken rage and demanded that McClellan be put off the job is insufficient to warrant a finding that Respondent Union "attempted to cause and did cause" Respondent Employer to discharge McClellan in violation of Section 8(a)(3) of the Act. In the first place the record clearly indicates , and I find, that neither Madden nor Bellmard had any authority to demand , on behalf of the Union, the discharge of any employee. In the second place, Dean, to whom Bellmard directed his demand, apparently knew that neither Madden nor Bellmard had any authority to demand, on behalf of the Union, McClellan' s discharge because Dean paid not the slightest attention to said demand. The fact that Respondent Union cared not whether McClellan was a member of its organization or of one of its sister organizations is illustrated by the fact that at no time did any union official inquire of McClellan, prior to dispatching him to the five or six jobs between August and December 18, 1961, regarding his union affilia- tions. In fact, the credible testimony of the Union's Business Manager Sam W. Williams and the credible testimony of Charles W. "Red" Lansford, establishes that the Union was cognizant of the fact that McClellan was not a member of the Union even though each knew that McClellan was being dispatched to jobs by Madden. The record further establishes , and I find, that Madden not only dispatched the two McClellan brothers to jobs but he also dispatched at least one other nonunion member. I find, on the basis of the record as a whole, that the allegations of the complaint, as amended, that Respondent Employer discharged McClellan in violation of Section 8(a) (3) and (1) of the Act have not been sustained by substantial credible evidence. I further find that the allegations of the complaint, as amended, that Respondent Union violated Section 8(b)(1) (A) and (2 ) of the Act have not been sustained by substantial credible evidence. Upon the record as a whole, it is recommended that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Harry Paul Tiner, d/b/a Seago Construction Company, Dallas, Texas, is en- gaged in and during all times material has been engaged in, commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. International Association of Bridge , Structural and Ornamental Ironworkers, Local 433, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint, as amended, that Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act have not been sustained. 4. The allegations of the complaint, as amended, that Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act have not been sustained. RECOMMENDED ORDER It is recommended, upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , that the complaint, as amended, be dismissed in its entirety. Tile Mart, a New Jersey corporation and George Forbes, Union Representative, and Floor Covering and Linoleum Workers Local 1823. Case No. A0-52. March 27, 1963 ADVISORY OPINION This is a petition filed by George Forbes, a union representative, and Floor Covering and Linoleum Workers Local 1823, herein called the Petitioners, for an Advisory Opinion in conformity with Section 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. In pertinent part, the Petition, and attachments thereto, allege as follows : 1. The Petitioners are defendants in a proceeding pending in the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6340-62 instituted by Tile Mart, herein called the Employer. The complaint and answer in the court proceeding allege that the Employer entered into a contract for the installation of a vinyl floor on the premises of the Wine Cellar, in the Cherry Hill Mall, Route 38, and Haddon Field Road, township of Cherry Hill, county of Camden, New Jersey. Subsequently, on Sunday, September 23, 1962, the Em- ployer began the installation work employing three mechanics who were members of, and represented by, Local 1823. The Petitioners demanded recognition as bargaining representative of the mechanics and payment of double time for Sunday work. When the Employer refused the demands, work was stopped and the mechanics failed to complete the installation job. As a result of this labor dispute, the 141 NLRB No. 81.