Daugherty Co., Inc., 1295 (1964)

DECISION AND ORDER

On April 1, 1964, Trial Examiner Frederick U. Reel issued his.

Decision in the above-entitled proceeding, finding that Respondents.

Daugherty Company, Inc., Shure-Richardson,. Inc., and Local 562,,

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFLCIO,1 had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found , regarding ',Hereinafter also referred to as Local 562.

147 NLRB No. 122.

Respondent Local 562, that, as to certain other allegations set forth in the complaint, the General Counsel had not sustained the burden of proof and recommended dismissal of such allegations . Thereafter, the General Counsel and Respondents Daugherty Company, Inc.,

Shure-Richardson, Inc., and Local 562 filed exceptions to the Trial Examiner's Decision with supporting comments or briefs.

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 Members Fanning 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 supporting comments and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recommended by the Trial Examiner, as amended hereinafter, and orders that Respondents Daugherty Company, Inc., Shure-Richardson, Inc., their officers, agents, successors, and assigns, and Local 562, United Association of Journeymen and Apprentices of the Plumbing and .Pipefitting Industry of the United States and Canada, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, amended as follows :

1. The following paragraph II, B, (4) is added to the Recommended Order:

   Notify the employees listed in Appendix A of the Trial Examiner's Decision, if presently serving in the Armed Forces of the United States, of their right to reinstatement as ordered in paragraph II, B, (1), upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces.

2. The paragraph designated in the Trial Examiner's Order as II, B, (4) is redesignated as paragraph II, B, (5).

   TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   This case was heard before Trial Examiner Frederick U. Reel in St. Louis, Missouri, on February 24, 1964,1 upon charges filed the preceding September 20 and Novem' Unless otherwise indicated, all other dates herein refer to the year 1963.

   DAUGHERTY COMPANY, INC. 1297 ber 5, and a complaint issued December 16. Briefly stated, the issue is whether Respondents Daugherty and Shure -Richardson discriminated against various employees because of their nonmembership in Respondent Local 562, and whether Local 562 caused this discrimination . The sole evidence at the hearing consisted of the testimony of witnesses called by, and exhibits introduced by, General Counsel.

   After the hearing and pursuant to agreement there reached , General Counsel tendered two additional exhibits and accompanying stipulations , which are hereby admitted into evidence. Briefs were filed in due course by General Counsel and by counsel for the respective employers; all have been duly considered. Upon the entire record,

   I make the following:

   FINDINGS OF FACT

1. THE BUSINESS OF THE EMPLOYERS , AND THE LABOR ORGANIZATION INVOLVED Daugherty Company, Inc., an Ohio corporation engaged in industrial construction throughout the United States, was , at the time of the events here in question, engaged at Pea Ridge, Missouri, in a project which involved the shipment into the State from points outside Missouri of goods and materials valued in excess of $50,000. ShureRichardson, Inc., a Missouri corporation engaged in construction and manufacturing, likewise obtained for its 1963 Missouri operations from points outside the State goods and services valued in excess of $50,000. Both these Companies are employers engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.

   The Respondent Union, sometimes known as Local 562, or the Pipefitters, or the United Association, is a labor organization within the meaning of the Act.

   2. THE UNFAIR LABOR PRACTICES A. The layoff at Shure-Richardson In the spring and early summer of 1963, Shure -Richardson was engaged in construction work at Farmington , Missouri. As of June 21 it employed 13 pipefitters on that job, including the foreman, Silas Coonrad, who was the sole employer representative on the job and who also served as union steward . The applicable collective-bargaining agreement provided, in effect, for a nonexclusive, nondiscriminatory hiring hall to be administered by Local 562. As of June 21, eight of the pipefitters on the job, including Coonrad, were members of Local 562; the other five were members of Local 318 of the same International.

   On June 17 Local 562 struck 30 employers in the area, but neither ShureRichardson nor Daugherty were among the struck employers. As a result of the strike, which continued until August 28, a number of Local 562 members normally employed by other employers were not at work. On Friday, June 21 , Shure= Richardson laid off the five pipefitters who were members of Local 318, and the following week Shure-Richardson hired five pipefitters (four on Monday and one on Wednesday), who were members of Local 562 and who had worked for struck employers up to the beginning of the strike . In notifying several of the ibbal 318 men of their layoff, Coonrad stated that it was 'none of his doing , it came from the hall,' that their work was good, and that he would like to have them back on the job after the strike. The five men hired the following. week worked until July 10 when they were laid off.

   B. The layoff at Daugherty Daugherty conducted the construction operations here pertinent under hiring hall conditions substantially identical to those prevailing at Shure-Richardson . In midJune 1963 , Daugherty undertook a special unloading project and other extra work at the construction site, which necessitated the hiring of approximately 30 additional employees. Daugherty representatives arranged with Local 562 to supply . the needed men, explaining that the special job was temporary , that it would last but a few days, and that a layoff would follow upon its completion . Local 562 received this request on June 17 or 18, i.e., just at the outset of its strike against certain other employers.

   It referred to the job in that week, and Daugherty hired 28 members of Local 562 of whom at least 25 had been working for struck employers up to the time -of the strike. Daugherty completed the temporary job on June 21, and decided to lay off enough men to reduce its complement of pipefitters to approximately the number employed prior to the temporary expansion.

   :756-236-65-vol. 147-83

   On June 21 Daugherty laid off 26 men, and on June 24 it laid off 4 more. All 30 were nonmembers of Local 562. The layoff list was compiled by one John Cleary, a superintendent employed by Daugherty, and who, as required by the applicable collective-bargaining agreement under which Daugherty was operating, was a member of Local 562. Daugherty's field superintendent, Marvin Brown, who had been at the project but a few weeks, directed Cleary to prepare the list on the basis of merit, retaining the better men. Brown testified that, as far as he knew, Cleary followed instructions in preparing the list. Cleary, who was present in the hearing room during the testimony, was not called as a witness. Daugherty had also laid off one nonmember, Wilders, on June 19, 1963, but he apparently had already been laid off at the time Cleary prepared his list.

   On June 24, the date on which Daugherty laid off the last 4 of the 30 nonmembers, it hired 17 members of Local 562, which that union referred for employment. At least 14 of the 17 were then on strike against other employers. The following day Daugherty hired seven more members of Local 562, all of whom were on strike against other employers.

   C. Analysis and conclusions The question in this case can be simply stated : has General Counsel sustained the burden of establishing by a preponderance of the evidence that Daugherty and ShureRichardson laid off, and that Local 562 caused them to lay off, the nonmembers of Local 562 under the circumstances described above, because of their lack of membership in that Local. The mere fact that Local 562 operated a hiring hall and served these employers as a source of employees does not of itself establish any violation of the Act, for it cannot be assumed that the hiring hall was operated in a discriminatory manner. Suspicion and surmise, in short, will not serve as support for a finding of violation; the violation must be shown by evidence. But, as the Eighth Circuit has stated, 'The Board's decision may be based upon circumstantial evidence as well as direct evidence. Direct evidence of a purpose to violate the statute is rarely obtainable.' N.L.R.B. v. Pacific Intermountain Express Company, et al., 228 F. 2d 170, 172 (C.A. 8), cert. denied 351 U.S. 592, citing inter alia,

   N.L.R.B. v. International Union of Operating Engineers, etc., Local 101 (Sub Grade Engineering Co.), 216 F. 2d 161, 164 (C.A. 8). And, as the same court has observed, 'The disproportionate...