Millwrights Local Union 1421, Etc.

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sequent referral by the Union. According, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that, in refusing to accept the referral of Clark on and after November 5, 1964, the Respondent violated Sec- tion 8 ( a)(3) and ( 1) oftheAct. With respect to Lawrence Tate,1e whom the General Counsel alleges to have been unacceptable for referral solely on the ground that he filed an unfair labor practice charge against the Respondent on October 28, the evidence reveals that, although Tate was in no way involved in the "batter board" incident on October 8 and 9, Maroon, on the latter date, which was several weeks before the October 28 charge was filed, apprised Hiltibidal of the fact that "Tate is no good" and that he did not want him on his job . Although , based upon Maroon's statement to Hiltibidal on November 4 that he would not hire Tate , Hiltibidal did not refer him for the north end reopening on November 5, Hiltibidal 's referral of Tate 3 weeks later on November 24 "to test" Maroon was accepted by the latter without incident. Although Maroon admitted on the record that one of the reasons that he did not want Tate was because Tate was known around the country as a troublemaker, which meant "generally it is petty things like lumping out of the ditch to call the business agent if I pick up a shovel," the evidence discloses that , like Clark, Maroon consid- ered Tate to be other than a good worker and, based upon Hiltibidal 's admission, Maroon communicated this to Hiltibidal as a reason for not hiring Tate (as well as Clark) on November 5. Accordingly , in view of the above, and notwithstanding Maroon's statement to Hiltibidal which, based upon its context, I believe to have been but an afterthought , to the effect that "Now they've got me messed up with the Labor Board," I find that the General Counsel has failed in its burden of proving by a preponderance of the credible evidence that , in refusing to accept the referral of Lawrence Tate between November 5 and 24, 1964, the Respondent violated Sec- tion8 (a)(3) and (4) of the Act CONCLUSIONS OF LAW 1. John Maroon Trucking Service is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Hod Carriers', Building and Common Laborers' Union of Amer- ica, AFL-CIO, Local 19, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. 16 Lawrence Tate , the alleged discriminatee , Is more frequently referred to in the record as Steve Tate , and should not be confused with his father , Ivan Tate. Millwrights Local Union 1421, affiliated with United Brotherhood of Carpenters & Joiners of America, AFL-CIO; L. A. Carter, Business Representative [Jervis B. Webb Company of Georgia] and John H. Davis, Jervis B. Webb Company of Georgia, C. M. Yeatts, Jr., Earl Cox. Cases Nos. 16-CB-247,16-CB-247-2,16- CB-047-3, and 16-CB-147-4. December 17,1965 DECISION AND ORDER On September 14, 1965, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Deci- 156 NLRB No. 10. MILLWRIGHTS LOCAL UNION 1421, ETC. 95 sion. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs. Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions,' and recommendations. [The Board adopted the Trial Examiner's Recommended Order dismissing the complaint.] IIn view of the Trial Examiner's finding that there was no attempt to cause Ray to discriminate, we need not consider his observations in the second paragraph on p. 103 of his Decision and, of course, find it unnecessary to pass upon the employment status of the persons in question. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner William Seagle at Fort Worth, Texas, on June 22, 23, and 24, 1965, upon a complaint issued on April 29, 1965, alleging violations by the Respondents of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended,' in refusing to give clearances for employment to five named millwrights on or about December 30 and 31, 1964, and in threatening to inflict or in inflicting bodily injuries upon several of the same millwrights on December 31, 1964, or January 4, 1965. Upon consideration of the entire record, including the posthearing briefs filed on behalf of all interested parties, and in view of my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Jervis B. Webb Company of Georgia (herein referred to as Webb) is now, and at all material times has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Georgia. The principal office and place of busi- ness of Webb is at Foster Street, NW., Atlanta, Georgia, but it also maintains plants at Detroit, Michigan, Los Angeles, California, and Hamilton, Ontario, in the Domin- ion of Canada, where it is engaged in the manufacture and installation of equipment. The present proceeding is concerned with the manufacture and installation of con- veyors at the BOP General Motors plant at Arlington, Texas.2 During the past year, Webb, in the course and conduct of its business operations, sold and distributed at its plant products valued in excess of $500,000, of which products valued in excess of $160,000 had a substantial impact on the national defense. 'The complaint was based on charges and amended charges filed as follows: In Case No. 16-CB-247, a charge and an amended charge were filed on January 12 and April 29, 1965, respectively, by John H. Davis. In Case No. 16-CB-247-2, a charge was filed on April 29, 1965, by Earl Cox. In Case No. 16-CB-247-3, a charge was filed on April 29, 1965, by C. M. Yeatts, Jr. In Case No. 16-CB-247-4, a charge was filed on April 29, 1965, by Jervis B. Webb Company of Georgia. 2 The BOP initials in the name of the plant stand for Buick, Oldsmobile, and Pontiac. 96 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD ' II. THE RESPONDENTS Millwrights Local Union 1421, affiliated with United Brotherhood of Carpenters and Joiners of America , AFL-CIO (hereinafter referred to as Local 1421 or as the Union), is a labor organization within the meaning of Section 2 (5) of the Act. L. A. Carter, the individual respondent, is now, and at all material times has been, the business representative of Local 1421. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The evidence The present proceeding had its origin in a series of events that occurred in con- nection with the installation of. the conveyer system in the General Motors BOP plant at Arlington, Texas. The erection superintendent for this work was to be one Clayton Ray, who had been with Webb for about 11 years. In preparation for the job Ray came to Arlington about the middle of December 1964, and had a series of prejob conferences with L. A. Carter, the business representative of Local 1421. The first of these prejob conferences occurred on December 18 in Carter's office, which was in Arlington. On this occasion, Ray was accompanied by Kenneth Anderson, who had been with the Webb organization for about 8 years, and who had come to Arlington from a Webb job at Allentown, Pennsylvania, where he had been a foreman. Ray was planning to use Anderson as general foreman on the BOP job but, although Anderson was affiliated with a millwrights local in Fort Smith, Arkansas, the clearance of Anderson was not discussed at the December 18 meeting. The discussion at this meeting was very general, consisting merely of such topics as the size of the job, the number of men who would be needed, and the crafts that would be involved, namely, the millwrights and the ironworkers. There was a second prejob conference with Carter on December 23 at the Six Flags Inn, a restaurant near the BOP plant. In addition to Carter, Ray, and Ander- son, there were present at this conference O. C. Yancey, a representative of Local 263 of the Ironworkers, Charles Lowery, his assistant, and William Renfro, a rep- resentative of the Operating Engineers. At this meeting, it was agreed that the ratio of millwrights to ironworkers on the BOP job would be 5 to 2, and Ray stated that he hoped to start actual work on December 28. Ray also informed Carter that Anderson would be his assistant but no clearance was requested for him, and Carter expressed no objection to having Anderson work on the job. The work would not begin, however, as scheduled-apparently, as the result of the unavailability of electric power-and on December 27 Ray attempted to reach Carter to inform him of the postponement but succeeded only in reaching Carter's secretary, whom he informed that he now hoped to start work on January 4.3 But news of the postponement either did not reach Carter in time, or he was unable to reach the millwrights who were supposed to report for work on the BOP job, and five of them showed up on the jobsite the morning of December 28 only to be informed of the delay. Ray himself was not present on the jobsite the morning of December 28 but the five millwrights were sent home by Boyd Puckett, a member of a millwright local in Dayton, Ohio, who had worked as a foreman on another Webb job in Dallas, involving the Sears Roebuck Company, and whom Ray was planning to use as his assistant superintendent on the BOP job. Puckett had, indeed, been on the Webb payroll for 34 years. Carter, who had gone to considerable trouble, including the making of long- distance telephone calls, to secure the five millwrights that had been requested by Ray, was extremely irritated by the latter's failure to provide work for them when they reported to the jobsite on December 28. Carter's irritation seems, moreover, to have influenced his subsequent actions in dealing with Ray and his assistants. In view of the postponement of the work, there was another prejob conference on December 30., Accompanied by Anderson and Puckett, Ray went to Carter's office that day, and then the parties walked over to a cafe next door to the union offices called the City Cafe where the commencement of the job was discussed again. Ray told Carter that work would start on January 4, and that in addition to Ander- son and Puckett, there were three other men in the Webb organization whose assist- 3 Carter testified that while Ray told him that he would like to start on December 28, he was not sure that he would be able to do so. Assuming, therefore, that the starting date would be December 29,' he arranged to have the five millwrights report on that day. It would seem more reasonable to assume, however, that Ray was correct in giving the starting date as December 28, which is a Monday, especially since, even according to the testimony of Carter , this was the date first mentioned by Ray. MILLWRIGHTS LOCAL UNION 1421, ETC. 97 ance he desired to help him start the BOP job. According to Ray, the three men whom he mentioned to Carter and whose clearance he then requested were C. M. Yeatts, John H. Davis, and Earl Cox.4 According to Carter, the three millwrights mentioned by Ray were Yeatts, Davis, and Donovan Gibbs. As Gibbs was then actually Ray's choice for the job, and was actually on the BOP jobsite at the time, it seems more probable that Ray mentioned Gibbs rather than Cox, although Cox was almost immediately substituted for Gibbs. In any event, Ray's request for clearances for the three men whom he wanted seems to have made Carter extremely angry. He demanded to know what was wrong with the five men whom he had already sent to the jobsite, and questioned the qualifica- tions of the men mentioned by Ray. When Ray persisted in his request for the three men, despite Carter's displeasure, the latter remarked: "What kind of a Root & Brown job are you running anyway?" 5 and added that the three men were "a bunch of ratty son-of-a-bitches like your company likes." However, Carter did not on this occasion definitely refuse clearances to the three men. As Ray himself testified: Q. Now, did Mr. Carter indicate that date whether he would grant clearances for these three individuals? A. He did not say he would or would not. Indeed, Ray himself talked to Yeatts and Davis and told them that he had been unable to get a definite answer from Carter. As Ray was leaving town, and had been unable to reach Cox, he sent the same word to the latter through Donovan Gibbs, who was still on the BOP jobsite. On December 31 Anderson and Puckett themselves appeared at Carter's office, and the purpose of their visit was to obtain clearance to work on the BOP job. Although Ray had not required them to obtain clearance, such a requirement was imposed on all union members, including those who were foremen, by the terms of the union constitution.6 The Union's office had an outer as well as an inner room, the outer room being used by Carter's secretary, Peggy Reynolds, and the inner room being used by Carter himself. On the occasion of the visit of Anderson and Puckett, however, the secretary had taken off that day, and her place was being filed by one R. B. Tharp, a member of Local 1421, who, on occasion, acted as her substitute. On this occa- sion, there were also present in the outer office, in addition to Tharp, four other members of the local, three of whom were identified at the hearing by name. 7 How- ever, only Anderson, Puckett, Carter, and Tharp testified concerning what hap- pened during the visit of December 31 and, while the testimony of the first two is in fairly close agreement, it is not in agreement with the testimony of Carter or Tharp. According to the testinomy of Anderson and Puckett, they were threatened with violence by Carter when they asked him for a work permit. Their testimony may be summarized as follows: Carter jumped up, and displaying a roofing knife, remarked not only that they were sons-of-bitches but also that he would teach them to come there and take his work. He then invited them into his inner office from which, he declared, they would never emerge alive. Alarmed by this menacing remark, Anderson ran out of the union office. Puckett, who stayed, succeeded after a while in quieting Carter down with the aid, apparently, of a dentist who had an office on the same floor. Anderson then returned to Carter's office, and Carter took him and Puckett into his inner room, where he showed them the contract between General Motors and the general contractor on the job. During the conversation in the inner office, however, Carter kept brandishing the roofing knife. Nevertheless, Anderson and Puckett renewed their requests for work permits. Their testimony is not in agreement, however, with respect to Carter's further response to the request. According to Anderson, Carter told him and Puckett that he had no time to fool with them, and walked out of the office. According to Puckett, Carter told them: "You don't need no damn permit." * All three of these men were millwrights, and all three of them had previously worked on Webb jobs. Davis and Yeatts, like Puckett, had worked on the Sears Roebuck job in Dallas. 5 Carter was referring, apparently, to the firm that has been involved in Board proceed- ings involving unfair labor practices. 6 See sections 42 and 46 of the constitution and laws of the United Brotherhood of Cairpenters and Joiners of America, which is in evidence as General Counsel's Exhibit No. 3. a "hese three millwrights were Suitt, Brumley, and Robert Pace, one of two brothers of that i lame. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carter's story of the roofing knife incident is not only far less melodramatic and lurid but is also more credible than the stories told by Anderson and Puckett. Carter explained that the Union was engaged in moving its office, and that workmen were making alterations for the new tenant. One of the workmen had left the roofing knife on the metal filing cabinet in the outer office. When he entered the outer office, and saw that Anderson and Puckett were there, he asked them what they wanted at the same time that he was removing his coat. As he put his coat on the filing cabinet, he noticed the roofing knife, and picked it up, so that the workmen would not have to look for it when they came in. There then ensued an argument concerning whether Anderson and Puckett needed a working permit. Still holding the roofing knife in his hand, he walked into the inner office to get a copy of the Union's constitution from his desk in order to prove to his visitors that it supported his position. Thus, he did not put the roofing knife down until he had picked up the constitution from his desk. Carter explicitly denied that he had threatened anybody with the roofing knife, or that he challenged Anderson to come into his inner office and fight, and he also denied that he showed Anderson and Puckett any contract, which, he testified, he did not have. While Tharp, the substitute secretary, also testified concerning the roofing knife incident, his recollections seemed to be extremely vague. All that he remembered about the conversations between Carter and his visitors in either the inner or the outer office was that at one point the former told the latter that they could not tell him how to run his business. Tharp seemed to be under the erroneous impression that Puckett and Anderson had been to the union office the day before, and he also testified that when they came to the union door, Carter was just returning from the restroom, after which he first put his coat on and then took it off. To the extent that Tharp's testimony is inconsistent with Carter's-if indeed such inconsistency can be said to exist-I credit the testimony of Carter. I must conclude that the testimony of Carter is far closer to the truth about the roofing knife incident than the testimony of Anderson and Puckett. The testimony of the latter seems to contain obvious elements of exaggeration. Anderson never explained, really, how or why he came to return to Carter's office after he had fled, apparently, in fear of his life. Neither Anderson nor Puckett explained why they entered Carter's inner office, although, according to them, they were terrified by the roofing knife, which he was allegedly brandishing, and by his supposed threat that they would never emerge alive. It seems difficult to understand, too, how Carter came to have in his possession a copy of the contract with the general contractor. But it seems entirely natural that he should have had on his desk a copy of the union constitution. There would also seem to be no good reason to reject the other ingredi- ents of Carter's story. There can be no doubt that the Union was engaged in moving and that the roofing knife had been left on the filing cabinet by a workman. When Carter picked it up, he should have put it down somewhere immediately. By holding on to it during his discussion with Anderson and Puckett, he undoubtedly created a situation which was bound to fill them with some apprehension. Subconsciously at least he may even have thought that it would be a good thing to frighten them a little. But I cannot conclude that Carter consciously intended to terrify them, or that they were actually terrified, or that either of them fled in fear of his life. Although the mere fact that Anderson and Puckett applied to Carter for a working permit on December 31 is not inconsistent with their being supervisory employees, since even foremen were required to apply for such permits, there can be no doubt that they had been hired as foremen. To be sure, they, as well as Ray, testified that when they were hired there was absolutely no discussion concerning the capacity in which they would be employed. Yet Puckett and Anderson were finally forced to admit that they "figured" that they would be foremen, and there is every reason to conclude that their suppositions were correct, since both of them had been foremen in their previous Webb jobs, and they were hardly expecting a demotion. If indeed it is true that they did not discuss their status with Ray, it could only have been that it was obvious. By pretending that they did not know that they were being hired as foremen, they only undermined their general credibility as witnesses. The BOP job finally got underway on January 4, 1965, but Anderson left Arling- ton, Texas, the following week, being reassigned to another Webb job at Hallis, Ten- nessee. He eventually returned to the BOP job but this was not until May 1965. A_s for Puckett, he never actually performed any work on the BOP job. Puckett's w..fe became hysterical and ill because of violent events which occurred in the neighhror- hood of the jobsite on January 4 and 5,8 and on January 6 be was transferreiJ to another Webb job. 8 These events are described infra. MILLWRIGHTS LOCAL UNION 1421, ETC. 99 Yeatts, Davis, and Cox reported for work on the BOP job on January 4 but they were then the only three millwrights on the job. Admittedly, Cox was a foreman from the very beginning of the job but Ray testified that Davis became a foreman about 2 weeks after the commencement of the job, and Yeatts himself testified that he became a foreman about a month after the commencement of the job. Nevertheless, there can be no doubt that they were brought to the job so that they would become foremen. Ray was not very candid when he sought to escape from admitting this but he let the truth slip out when he testified that when during the conference of December 30 with Carter he asked for clearance for the three men whom he wanted Carter declared that not one of them was qualified to be a foreman. In fact, Ray had not required any of the three men to get referrals from the local. So far as Yeatts is concerned, it is highly significant that when Ray came to Arlington before Christmas 1964, he asked Yeatts to accompany him on a search for equipment in Fort Worth. Ray would hardly have taken Yeatts along on this expedition if he was not to be employed in a supervisory capacity. Obviously, the reason Yeatts, Davis and Cox reported to the BOP jobsite on January 4 before any other mill- wrights were there was that they were to do the preliminary planning, which is only another indication of their supervisory capacity. Indeed, Puckett testified that he expected Yeatts, Davis, and Cox to be foremen, and this was certainly a reasonable expectation. Davis himself admitted that Ray "asked me if I would come over and be a foreman when we got enough men on the job." This admission explains how the contention could be made that they were not foremen ab initio. They were not foremen then only in the sense that they had no one to supervise! But they were fore- men in the sense that they were hired with the expectation that they would become foremen. When Cox, Yeatts, and Davis reported for work the morning of January 4, Yeatts made a telephone call to Carter at the suggestion of Ray and in his presence. The purpose of this telephone call was to inform Carter that Yeatts, Davis, and Cox were ready to work, and to ask Carter to appoint one of them as job steward. Ray, who, of course, could only hear Yeatts' side of the conversation, testified that as soon as Yeatts mentioned the names of Davis, Cox, and himself, Yeatts turned towards him and told him that Carter had hung up on him, and that he then suggested to Yeatts that he call Carter again because he might have been cut off. Ray testified further that Yeatts called Carter again but that as soon as Yeatts asked Carter to appoint a job steward the latter hung up a second time. But it is apparent that, since Ray him- self was not on the telephone, and Yeatts did not say that Carter had hung up on him again, this was a mere conclusion on his part. Yeatts' own testimony establishes, moreover, that there was no justification for this conclusion, for he testified that Carter did enter into a discussion of the qualifications of a steward, and expressed the view that the selection of a steward would be a matter of opinion. Carter could not have hung up again, therefore, as soon as Yeatts called him the second time. How- ever, Carter, it is clear, did not appoint a steward in his telephone conversation with Yeatts, and Yeatts and Davis put their heads together and decided that one of them would be the job steward. But it is not possible to determine who actually became job steward. Ray testified that Cox, Yeatts, and Davis selected Yeatts as job steward. But Davis testified that he and Yeatts decided that Davis should be the job steward. Cox was not a witness at the hearing at all. At 4:30 p.m. on January 4, Cox, Yeatts, and Davis quit work, and the three of them rode together in the general contractor's pickup truck to the guard gate at the jobsite. At this point Cox and Yeatts got off the pickup truck to turn in their temporary badges but Davis who had a permanent badge rode on to the General Motors parking lot which was several hundred feet from the guard gate. As Davis was thus sepa- rated from Cox and Yeatts, the latter did not themselves witness what shortly hap- pened to him. However, as is not unusual, those who did witness what happened, disagreed in testifying about it. Davis contended that he was severely beaten on this occasion while a party of fellow millwrights consisting of Herbert Raymond Russell, Donald D. Lemaster, G. L. Wagnon, and Neal Carter, a son of L. A. Carter, were present at the parking lot. The testimony of Davis may be summarized as follows: As he stepped off the general contractor's pickup truck and started walking towards his own pickup truck, he espied Neal Carter. As he turned around, he also saw Russell and Wagnon. Rus- sell grabbed hold of his shoulder, and while holding him by the material of his blue denim jumper that he was wearing, hit him in the mouth, and dislodged his dental plate, which fell to the ground. As Russell struck the blow, he remarked to Davis: "We will teach you to get our jobs," or something to like effect. At this point Davis also became aware, apparently, of the presence of Lemaster, and someone whom 217-919-66-vol. 156-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could not identify attempted to hit him in the groin but he succeeded in warding off the blow with his hand. He then thought that he would be able to get away from his assailants but somebody grabbed him by his blue denim jumper again, and he was beaten some more. He then saw Lemaster's foot coming, and, stooping down to avoid the blow, was kicked by him in the pit of the stomach. This time he succeeded in getting away from his assailants and encountered Yeatts, who had come up, and helped him pick up some of the pieces of his dental plate. He then went with Yeatts to report the assault on him to the police in Arlington. Although he was not aware of it at the time of the assault, he felt a soreness in his ribs about 4 days later and consulted a doctor who prescribed a rib belt which he wore for almost 5 months. Russell denied that he went to the parking lot in order to attack Davis, or that Carter or any other officer of the local sent him there for that purpose. He testified that he went there with his son, James, an apprentice millwright, in order to obtain a job for him from Davis, after hearing from another millwright by the name of John Schilling that Davis was hiring men for the BOP job. Russell claimed that his family was desperately in need of money, especially since his wife had just given birth to a premature incubator baby. According to Russell, when he asked Davis for a job for his son, Davis called him an s.o.b. and swung at him with his lunch bucket, whereupon he ducked the lunch bucket, and hit Davis hard several times in the mouth. At this point Wagnon intervened by grabbing him by the shoulder, and pulled him away from Davis. He and his son then left the parking lot in their car. Lemaster and Wagnon also testified with respect to the fracas of January 4, which they admitted witnessing, but both of them denied that they participated in it in any manner, and, like Russell, explicitly denied that they went to the parking lot at the suggestion of any union official. Lemaster also explicitly denied that he had kicked anybody, or struck any blows at all, and Wagnon testified that his only involvement in the fracas was to separate Russell and Davis, as any law-abiding citizen would have done. Both Lemaster and Wagnon testified that, like Russell, they had come to the parking lot to ask Davis for work, which they also desperately needed. Lemaster testified that he went to the parking lot at the suggestion of a millwright by the name of Jerry Hatsfield, and Wagnon testified that he had heard that men were being hired at the BOP job while he was on the street where the union office was located, and, knowing Davis well, went to ask him for a job. It seems indeed that Russell and Lemaster were also personally acquainted with Davis. Carter himself, like all other of the Respondents' witnesses who were present dur- ing the fracas of January 4, denied that he had sent anyone to attack Davis, and tes- tified that he did not learn of the incident until the following day. For a variety of reasons, I accept Carter's denial that he instigated the attack on Davis, although my observation of the former at the hearing convinced me that he was a man of violent temper. I also accept the testimony of Russell, and the two other millwrights who corroborated the latter's testimony. In the first place, the evidence suggests that Davis exaggerated considerably the seriousness of the attack on him and the extent of his injuries. He was hit in the mouth several times and his dental plate was dislodged, and he may also have been punched in the chest. There is good reason to disbelieve, however, that he was hit in the pit of the stomach, for he was able to get up almost immediately and drive his own pickup truck to the police station. According to his own testimony, the whole affray did not last more than a minute and a half, and it may have lasted only 20 seconds. In intervals of time so brief he could not have been beaten up very exten- sively. The brevity of the attack also suggests that the blows were spontaneous and struck in anger, and not the result of a planned attack. In the second place, the evi- dence also suggests that Davis' exaggerations may have been motivated by the extremely bad feeling that had existed between him and Carter for a considerable length of time before the BOP job was even started. Even after peace had been made between the Union and the Webb forces, as presently to be related, Davis would not shake hands with Carter. In the third place, the appearance of Russell, the alleged principal assailant, suggests that if he was really chosen by Carter to lead the attack- ers, he was ill-chosen for his appointed task. He did not seem to be the bruiser type, and, for that matter, neither were his companions. In the fourth place, there is no evidence that any of the alleged assailants were convicted of any crime, as a result of the attack. Finally, the simultaneous presence of a number of the millwrights on the scene of the fracas, while somewhat suspicious, does not necessarily indicate that they were acting in concert, and carrying out a planned attack. While it is true that normally MILLWRIGHTS LOCAL UNION 1421 , ETC. 101 millwrights seeking employment would do so through the Union, it cannot be said to be satisfactorily established that this was always the case. The situation in which the millwrights found themselves at this time was, moreover, definitely not normal. The total membership of the Union was 163 of whom 40 to 60 were unemployed. It is, therefore , not surprising that those millwrights who were unemployed should seek to help themselves. Union clearance could be obtained after jobs had been located. Furthermore, the millwrights involved were personally acquainted with Davis, and they had, therefore , a special reason for appealing directly to him. In his effort to implicate Carter in the attack on Davis, despite the denials of all the Respondents' witnesses, counsel for the General Counsel also offered further evidence that in the fall of 1964 Carter had encouraged another member of the millwrights local to resort to violence to achieve his ends, and that during the early morning following the alleged attack on Davis, union members threatened further violence. Leon Franklin Pierce, a member of Local 1421, who was working on the BOP job at the time of the hearing, testified that early one morning in the fall of 1964 he was wakened by a telephone call from Carter who started cursing and told him : "Well, you were right, that long-tailed rat Davis ,9 he went out on the job-him and Schilling," and asked him what he was going to do about it. Then Pierce testified further as follows: So, I told him, I said, "I don't supposed to do anything." I said that something ought to be done. And he said .... I said, "Well, what are you going,to do about it?" And he said, "If it was left up to me, I would take a bunch out there and whip the hound dog out of them." But he said, "I am an official, and that is what they are looking for." So we talked on there and he said, "What are you going to do?" And, I said, "Nothing, I don't guess." He said, "What about coming over here?" I said, "Well, what am I going to come over there for?" And, he said , "Well, you are interested in your union , aren't you?" I said, "I am not going out there and start anything." He said, "Well Leon," he says , "I can't go out there. Why don't you?" I told him, "Let's do it legally." He said, "Well, you just call the Labor Relations Board and find out what you can do." As a witness , Pierce was highly inarticulate and sometimes even incoherent, and his testimony is extremely obscure. It is not even clear whether he was urging Carter to do something, or whether Carter was urging him to do something. Pierce also did not even seem to be certain that the job he and Carter were discussing was a job called the Anderson Cork job involving an addition to the Six Flags . Inn. He also did not succeed in explaining. very clearly exactly what was the cause of Carter's indignation . Apparently it had something to do with a union list from which men were supposed to be hired. This may be inferred perhaps from evidence in the record that the Union maintained a rotating list of men to be sent to jobs as jobs became available. Pierce was also extremely vague in attempting to describe the sequence of events after his telephone conversation with Carter but it seems that at one point a multicarload 'delegation of millwrights headed by Ed Thornbury, the president of Local 1421 , descended on the Regional Office of the Board and discussed the problem with a Board agent . It would seem also that in this discussion there was considered not only the possibility of picketing the job but also of "knocking heads together"-a possibility that Carter is supposed to have confidentially dis- cussed with Pierce. In the end, it seems that nothing at all was done about the situation. In testifying about the alleged telephone conversation with Pierce , Carter did not succeed very well in clarifying either the nature of the dispute or the sequence of events. Carter did not specifically mention the Six Flags Inn, and only named the contractor on the job , a J. W. Nesbitt, whom he described as a member , and with whom, he declared, his relations were cordial. Carter testified that Pierce was one O .Apparently this is the same Davis as was involved in the January 4 fracas. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a group of union members who wanted him to picket the job but that he refused, and advised him not to do anything that would get him into trouble. He specifically denied that he had urged anyone to engage in any violence. The violence threatened in the early morning of January, 5 occurred in the Lex- ington Apartments in Grand Prairie, Texas, which were about 3 miles from the BOP jobsite. One of these apartments was shared by Ray, Puckett, and Anderson. About 6:30 a.m. while they were getting ready for the day's work, they heard someone hollering outside their apartment in evident alarm . Ray grabbed a gun, and ran to the door. Just before he reached the door, Bobby Lamb, foreman of the ironworkers on the job, burst through the door from the outside. Ray could see that he was being pursued by Bobby Pace, one of the millwrights, who was a member of Local 1421. Ray stopped Pace from entering the apartment. Pace started to run away but Ray told him to stop, and held his gun on him while the police arrived and arrested him. When Pace stopped he remarked to Ray: "We will teach you sons of bitches to come in here and take our work away from us." To this Ray replied: "All the work is still out there on the job." Several other men had been in pursuit of Lamb but Ray could recognize only one of them, a millwright named Bobby Norman, who was also a member of Local 1421. Anderson and Puckett, who were also staying in the apartment, heard the alarm, of course, but neither of them could identify any of the pursuers of Lamb. Appar- ently, when the pursuit started, Anderson had left the apartment and was headed toward his car. When Lamb hollered and started to run towards the sanctuary of Ray's apartment, Anderson ran the other way, which took him around the swimming pool to the side entrance of the apartments. Two of the pursuers chased him but never caught up with him. As the morning was dark and foggy, Anderson was unable to identify them. As for Puckett, he was having breakfast at the time, and when the alarm was sounded, he started towards the doorway but his wife, as well as Ray, counseled him to stay where he was, and he did. He therefore neither heard nor saw anything, although he was aware of the general commotion. After the alarms and excursions of January 4 and 5, a peace conference was arranged at the instance of the Webb Company, and it was held in the office of the Texas organizing office of the Union in Dallas, Texas.' Representing the Union were Carter, G. H. Simmons, Jr., director of the Texas organizing office, and A. L. Spring, a representative of the United Brotherhood of Carpenters. Representing the Webb Company were Ray, Puckett, Anderson, and E. L. Shupe, its general erection super- intendent. After a thorough discussion, the parties reached a general understanding that was expressed in a letter dated January 6, and addressed to M. A. Hutcheson, the general president of the United Brotherhood of Carpenters, and to the Atlanta, Georgia, office of the Webb Company. As stated in the letter, understanding was reached on the following six points: 1. The Company agrees to the Union's placing a steward on the job as of 8:00 a.m. January 7, 1965. 2. The Company agrees to make all request for men to the Business Agent, in writing by numbers or name not to exceed 50% by name. 3. L. A. Carter, B. R. of Millwrights Local 1421, agrees to clear company men through Local Union which will not exceed 3 or 4 men. 4. Mr. Ray, project superintendent agrees to drop charges against Local Union members when he is satisfied no recurrence of same or like action which occurred on the part of individuals involved on January 5, 1965, at his home and in B. O. P. parking lot. 5. Should any of the terms of this understanding be violated by either party, G. H. Simmons, Jr. and E. L. Shupe, shall be informed immediately by an aggrieved party for the purpose of resolving same. In no case shall there be a work stoppage due to interpretation of this understanding or any other matter that may arise before an attempt to resolve the problem has occurred. 6. The Union agrees that this understanding satisfies all grievances and no retaliatory action will be taken against the Company or its employees. The agreement made by the parties on January 6 has been faithfully kept, and there has been no further trouble on the BOP job. B. Concluding findings In their briefs, counsel for the General Counsel and for Webb seem to stress Car- ter's bad temper, which he undoubtedly displayed on frequent occasions, and seem MILLWRIGHTS LOCAL UNION 1421, ETC. 103 to complain also of his bad language, which, it must be conceded, was not always fit for the ears of children. But I am not called upon to decide whether Carter was a well-mannered or good-natured person, nor whether there was some degree of provo- cation to justify his behavior. Deficiencies in courtesy or decorum, or in speech, are not in themselves unfair labor practices. I am called upon to decide only whether Carter's conduct violated any of the positive provisions of Section 8(b)(2) or of Section 8(b)(1)(A) of the Act. Section 8(b)(2) and 8(b)(1)(A) of the Act forbid under certain circumstances the refusal of clearance to prospective employees by a union or its agents. So far as Cox is concerned, I have found that clearance was requested by Ray not for Cox but for Gibbs, and no violation can be found, therefore, in the case of Cox. So far as the other four millwrights mentioned in the complaint are concerned, namely, Anderson, Puckett, Davis, and Yeatts, the evidence is rather fuzzy as to whether Carter did at any point positively deny them clearance. He seems to have either temporized, or taken the position that the applicants did not need any clearance. While they needed such clearance as a matter of union practice, Carter may have taken the position that he was not legally required to give them clearance. If this was his position, it would seem to have been correct, for there is no evidence in this case that the union operated an exclusive hiring hall, or that there was any agreement, express or implied, between Webb and the Union requiring union clearance as a condition of obtaining employment. In applying to Carter for clearance for employ- ees whom he had in fact already hired, Ray was doing so only as a matter of comity to maintain good relations with the Union. In such circumstances, the Board has held that the granting or withholding of clearances or work permits is an internal union matter protected by the proviso to Section 8(b)(1)(A) which preserves the right of a labor organization to prescribe its own rules with respect to the acquisition or reten- tion of membership.'° Furthermore, even if it could be assumed that what Carter did constituted an attempt to cause Ray to discriminate against the millwrights named in the complaint, and also that it was necessary to secure clearances for them, Section 8(b) (2) and 8(b)(1)(A) of the Act would not have been violated because supervisors are excluded from the protection of the Act by Section 2(3) thereof, and all the mill- wrights named in the complaint were hired as supervisors without a single exception. In F. H. McGraw and Company, 99 NLRB 695, mod. and enfd. in 206 F. 2d 635 (C.A. 6), the Board decided that an applicant seeking clearance for a position as a foreman was not entitled to the protection of the Act. Consistently with my factual findings, I can also find no violations of Section 8(b)(1)(A) of the Act by reason of the threat of violence or of actual violence alleged in the complaint. I regard the evidence as unsatisfactory and inconclusive. Undoubtedly, Carter has a violent temper, which he demonstrated even while he was on the witness stand. But a bad-tempered individual is not necessarily a less credible witness than calm and self-possessed individual, and cannot be presumed to be respon- sible for every act of violence with which he could conceivably be connected. Even if I could believe the evidence of Pierce relating to an incident that occurred months before those involved in the present case, it would establish at most that Carter had some capacity for violence. Actually, Pierce's evidence, even if true, would indicate, moreover, that coupled with his thoughts of violence was an acute consciousness of legality. So far as the evidence relating to the actual violence charged in the com- plaint is concerned, its chief deficiency is that it is completely lacking in ingredients which would supply a reasonable basis for connecting Carter with the beating of Davis. Even if I were to disbelieve the evidence of the respondent witnesses, which no doubt contains some elements of suspicion, it would not solve the problem pre- sented by the absence of direct or persuasive circumstantial evidence that Carter 10 See Kaiser Gypsum Company, Inc., 118 NLRB 1576, 1581; International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local No. 409, AFL-CIO (Columbia Broadcasting System, Inc.), 119 NLRB 810, 814; Local Union No. 592, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO (Brunswick Corporation), 135 NLRB 999, 1000; Local 626, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO (Food Fair Stores, Inc.), 142 NLRB 1238, 1239-1240; Carpenters Local ##40, United Brotherhood of Carpenters, etc., at al. (Stop & Shop, Inc.), 143 NLRB 142, 143; Frank Paisley, as Agent for Local Union No. 1, International Association of Iron Workers (R. Gatwood Steel Erectors, Inc.), 152 NLRB 1409. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered Davis to be beaten up as an act of reprisal against Webb and its representa- tives or employees. Even if Russell and his companions were lying in explaining the reason for their presence on the parking lot on January 4, there could well have been another reason to explain why they may have wanted to beat up Davis, and this reason may have had its source in factional union politics rather than in the irritations aris- ing from the staffing of the Webb job. It is not without significance that while the police made some arrests as a result of the beating of Davis, there is no evidence that anyone- was ever convicted because of his participation in the incident. While the evidence required to convict in a criminal case would be far more strict than the evidence required to find a violtaion in a Board proceeding, such evidence must still be substantial. The evidence relating to the chase of Lamb the morning of January 5 does not really buttress the case of the General Counsel, for it is not convincingly established that it was in fact a continuation of the violence during the late afternoon of January 4. The persons involved in the two incidents were wholly different, and while the pur- suer of Lamb was a millwright, the individual who was being pursued was an iron- worker. The record is completely devoid of any evidence of trouble with the iron- workers. It seems odd, therefore, that the intended victim of the projected assault should have been an ironworker rather than a millwright. It should be noted that in any event the pursuit of this ironworker is not charged in the complaint as an inde- pendent violation. I have-indicated that there is some reason for criticizing the conduct of Carter in connection with the roofing knife incident. But, surely, this rather equivocal inci- dent would not in itself have justified the issuance of a complaint, especially when it is considered that peace was shortly made between the contending parties, and that the terms of the peace have been kept. CONCLUSIONS OF LAW 1. Jervis B. Webb Company of Georgia is an employer enaged in commerce or in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, Millwrights Local Union 1421, affiliated with United Brother- hood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing or refusing to give clearances for employment to C. M. Yeatts, Jr., Earl Cox, and John H. Davis on December 30, 1964, the Respondent Union, through its officers and agents, did not cause or attempt to cause Jervis B. Webb Company of Georgia to refuse to hire them, and did not, therefore, violate Section 8(b)(2) or 8(b)(1)(A) of the Act. 4. By failing or refusing to give clearances for employment to Kenneth R. Ander- son and Boyd Puckett on December 31, 1964, the Respondent Union, through its officers and agents, did not cause or attempt to cause Jervis B. Webb Company of Georgia to refuse to hire them, and did not, therefore, commit any unfair labor practice affecting commerce within the meaning of Section 8(b)(2) or 8(b)(1)(A) of the Act. 5. The Respondent Union, through its officers and agents, and the Respondent Carter, did not on December 31, 1964, threaten to inflict bodily injury on Kenneth R. Anderson and Boyd Puckett, employees of the Jervis B. Webb Company of Georgia, because such employees had requested union clearance, and the said Respondents did not, therefore, commit any unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) of the Act. 6. The Respondent Union, through its officers and agents, and the Respondent Carter, did not, on January 4, 1965, threaten to inflict or inflict bodily injury on John H. Davis, an employee of Jervis B. Webb Company of Georgia, because the said employee had obtained employment without union clearance, and the said Respond- ents did not, therefore, commit any unfair labor practice affecting commerce within the meaning of Section 8 (b) (1) (A) of the Act. RECOMMENDED ORDER In view of the foregoing findings of fact and conclusions of law, it is recommended that the Board enter an order dismissing the complaint.