The Hunkin-Conkey Construction Co., 955 (1962)

Docket Number:08-CA-00307
 
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THE HUNKIN-CONKEY CONSTRUCTION COMPANY 955 respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an agreement is reached, embody such understanding in a signed contract. The bargaining unit is:

All our over-the-road drivers, excluding all professional employees, guards, and supervisors as defined in the Act.

- All our employees are free to become or remain members Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 991, AFL, or TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION 726, AFL, or of any other labor organization, except to the extent above stated.

J. L. DEAN, D/B/A D & D TRANSPORTATION COMPANY,

Employer.

By ----------------------------------------------------(Representative) ( Title) Dated -------------------J. L. DEAN & JOHN H. DOVE, A CO-PARTNERSHIP FORMERLY D/B/A D & D TRANSPORTATION COMPANY,

Employer.

By ----------------------------------------------------Dated -------------------This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.

THE HUNKIN-CONKEY CONSTRUCTION COMPANY and STEWART LEROY LIGHTFOOT

HOISTING, PORTABLE, SHOVEL ENGINEERS' AND FIREMEN'S LOCAL UNIONS Nos. 18, 18-A, 18-B , 18-C, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL and STEWART LEROY LIGHTFOOT. Cases Nos.

8-CA -307 and 8-CB5. August 29, 1959

Supplemental Decision and Order On July 23, 1951, the Board issued a Decision and Order in the above-entitled proceeding finding, inter alia, that by the discharge of Stewart Leroy Lightfoot by the Respondent Company at the request and demand of the Respondent Unions, the Respondent Company and the Respondent Unions had violated Section 8 (a) (1) and (3) of the Act and Section 8 (b) (1) (A) and 8 (b) (2) of the Act, respectively.

Thereafter, on August 2, 1951, the Respondents filed a motion for reconsideration of this portion of the Board's Decision and requested that the record be reopened to afford the Respondents the opportunity to submit evidence which they contended would impeach the credibility of Lightfoot.

On August 17, 1951, the Board issued an Order in which it remanded the instant case to the Regional Director of the Eighth 100 NLRB No. 138.

Region for the purpose of reopening the record in this proceeding, to permit the Respondents at a further hearing to introduce the evidence proffered in their motion which was not available- at the time of the hearing, and'also to permit the General Counsel to offer any rebuttal evidence on this issue. The Board further ordered that the Trial Examiner, James A. Shaw, submit a supplemental Intermediate Report setting forth his findings of fact and conclusion with respect to the evidence adduced at the further hearing and the effect of such findings and conclusions upon the original Intermediate Report. The Board also ordered that its prior Order in this proceeding, insofar as it involved Lightfoot, be stayed pending the Board's reconsideration of this matter.

On May 20, 1952, Trial Examiner Shaw issued his Supplementary Intermediate Report, a copy of which is attached hereto, in which lie found no reason to modify or change the findings, conclusions, and recommendations in his original Intermediate Report. Thereafter, the Respondents filed exceptions to the Supplementary Intermediate Report and a supporting brief.,

The Board has reviewed the rulings made by the Trial Examiner at the further hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report and the Supplementary Intermediate Report, the exceptions and briefs to the Intermediate Report and Supplementary Intermediate Report, and the entire record in the case, and hereby finds, in accord with the supplementary findings, conclusions, and recommendations of the Trial Examiner which are hereby adopted, no reason to modify or change the Decision and Order of July 23,1951,2 herein.

Order IT Is ORDERED that the Board's Order of August 17, 1951, which stayed its Decision and Order 'of July 23, 1951, insofar as it involved 1 Respondent's request for oral argument Is hereby denied, as the record and briefs and exceptions adequately present the issues and positions of the parties.

2 The Respondents argue that the decision of the Ninth Circuit in N. L. R. B. v. Atkinson Co. et al., 195 F. 2d 141 , sustains their contention that It was arbitrary and capricious and an abuse of its discretion for the Board to proceed as it did in this case. We find no merit In this contention. The Atkinson case is not apposite here, for it was concerned with a situation where the parties entered into a closed-shop contract and an employee was discharged thereunder at a time when the Board was not asserting jurisdiction over the building and construction industry. The Board found a violation of the Act at a time when it was taking jurisdiction over that industry . The court reversed the Board because It held that the Board's change in jurisdictional policy should not be applied retroactively.

In the instant case all the conduct of the Respondents which we have found illegal occurred at a time when the Board was asserting jurisdiction over the building and construction industry ; since the passage of the Labor Management Relations Act of 1947, the Board has consistently taken jurisdiction over employers in the building and construction industry ( Brown and Root, Inc, et al., 77 NLRB 1136 ; Starrett Brothers & Eken,

Inc., 77 NLRB 275).

TIE HUNKIN-CONKEY CONSTRUCTION COMPANY 957

Stewart Leroy Lightfoot, be, and it hereby is, vacated and set aside,.

and the Board's Order of July 23, 1951, be, and it hereby is, after reconsideration, affirmed.

Mix u ms HOUSTON and STYLES took no part in the consideration of the above Supplemental Decision and Order.

Supplementary Intermediate Report On August 17, 1951, the Board issued an Order remanding the instant case to the Regional Director for the Eighth Region (Cleveland, Ohio), for the purpose of reopening the record and the taking of further testimony for the reasons set forth below. Since the Board's Order itself clearly states the issues involved herein it is set forth immediately below:

Order Reopening Record and Remanding Case to Regional Director On July 23, 1951, the Board issued a Decision and Order in the aboveentitled proceeding finding inter alia that by the discharge of one Lightfoot by the Respondent Company at the request and demand of the Respondent Unions, the Respondent Company and the Respondent Unions had violated Section 8 (a) (1) and (3) of the Act and Section 8 (b) (1) (A) and 8 (b) (2) of the Act, respectively. Thereafter, on August 2, 1951, the Respondent Company and the Respondent Unions filed a motion for reconsideration of this portion of the Board's Decision and requested that the record be reopened to afford the Respondents the opportunity to submit evidence which the Respondents contend would impeach the credibility of the said Lightfoot.

The Board having duly considered the matter,

IT IS HEREBY ORDERED that the record in this proceeding be reopened and a...

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