The M. W. Kellogg Co.

526 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD In the event no Statement of, Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203 48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. THE M. W. KELLOGG COMPANY 1 and LODGE No. 790, INTERNATIONAL ASSOCIATION OF MACHINISTS UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, AND ITS LOCAL UNION No. 943 and LODGE No. 790, INTERNATIONAL ASSOCIATION OF MACHINISTS. Cases Nos. 16-CA18. and 16-CB-7. May 16,1951 Decision and Order On September 15, 1950, Trial Examiner Euguene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged 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 copy of the In- termediate Report attached hereto. Thereafter, the Respondent Com- pany and the Respondent Unions filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made at the hearing by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case,2 and for the reasons hereinafter stated finds merit in certain of the Respondents' exceptions. The Trial Examiner found, among other things, that at the time when the alleged discriminatees sought employment in July 1949, the Company was following a practice it had earlier adopted of hiring only members of the Carpenters for millwright jobs; that pursuant to that practice, these individuals were not admitted by the guards to the Company's property because they did not have referral cards from the Carpenters; and that the practice in question had been caused ,by the Carpenters by virtue of the fact that the Carpenters' local bylaws and trade rules, the existence of which had been communicated to the Company, presented a clear threat of strike if nonmembers of the Carpenters were hired for millwright work. He concluded 1 The name of the Respondent Company appears as amended at the hearing. z As the record, the exceptions, and briefs, in our opinion, adequately present the issues and positions of the parties , the Respondents ' request for oral argument is hereby denied. 94 NLRB No. 74. THE M. W. KELLOGG COMPANY 527 that this conduct constituted a violation of Section 8 (a) (3) and (1) by the Company and 8 (b) (2) by the Unions. We do not agree with the Trial Examiner's factual findings, and, accordingly, find no basis for his conclusions. 1. There was no express agreement between the Company and the Carpenters which required the Company to give preference to mem- bers of the Carpenters in the hiring or employment of millwrights on the project, and the Trial Examiner so found. However, relying on a combination of circumstances, the Trial Examiner found that the Company had maintained a practice of hiring only millwrights who were members of the Carpenters and had referral cards from that Union. In reaching this conclusion, he found that at the outset of the project the Carpenters acquainted the Company with its local bylaws and trade rules and made it clear that the provisions which call for a refusal to work with nonmembers of the Carpenters were the terms tinder which the Carpenters would work. However, this finding was based not on actual testimony but on an inference and one which, we believe, has insufficient support in the record. Manager Emerson testified that when he came to the project in June 1948 he found a copy of the bylaws and trade rules in his office, and that in the middle of 1948 he had several conversations with-Carpenters' representative, Arrington, in which they discussed "primarily the availability of men and the type of men as for qualifications." The local bylaws and trade rules are contained in a 29-page closely printed booklet and deal with 47 different subjects, including wage scales, overtime, holi- days, and internal union regulations. Emerson did not in his testi- mony refer to any of the trade rules affecting the hiring or employ- ment of millwrights, or even to any restrictive hiring procedure apart from the trade rules. Arrington did not testify at the hearing. Nevertheless, the Trial Examiner inferred that Emerson's discussions with Arrington "were longer and involved much more than he ad- mitted at the hearing." Unlike the Trial Examiner, we are unable to conclude, without additional evidence, that the trade rules in question were discussed or that Arrington had made any proposal in con- nection with such trade rules for maintaining closed-shop conditions or for restricting the hiring of millwrights. Treating the trade rules as a "proposal," the Trial Examiner found that "while there is no evidence of a written or verbal answer by Emerson or any other Kellogg officer to this proposal, Kellogg's actions in response to the proposition speak louder than words." Thus, because the Company had hired a millwright superintendent and a millwright foreman who were themselves members of the Car- ,penters, and a Carpenters' millwright steward had been present on 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the job, the Trial Examiner relied on these circumstances to conclude that the Company had in fact complied with specific provisions in the trade rules pertaining to hiring. However, conformance with some of the trade rules, which in themselves are not evidence of dis- criminatory conduct, affords no reasonable basis for concluding that the Company had in, fact complied with other trade rules in the absence of evidence to that effect. Similarly, because the Company did not use the facilities of its personnel office to recruit millwrights, the Trial Examiner inferred that this circumstance could only be explained on a discriminatory basis. However, the Company explained its method of hiring mill- wrights by pointing to the fact that Millwright Superintendent Gillen had a personal following that went with him from job to job, one of the attributes of a successful construction superintendent being his ability to attract such a following; that Gillen's reliance in recruit- ing millwrights on recommendations from other millwrights already on the job or from millwright superintendents on other company jobs was not exceptional as this was a common practice in the construction industry ; and that under the circumstances there was therefore no need for engaging the efforts of the personnel office. We have carefully examined the evidence as to the actual hirings of millwrights over the entire period of the project operations and find that practice generally consistent with this explan ttion.3 It is true that a number of mill- wrights were hired on the basis of recommendations from members of the Carpenters and were themselves members of that Union, but this fact does not establish discrimination, particularly where, as in this case, it is reasonably explained on grounds that have nothing to do with union preference. Under all the circumstances, we therefore conclude that there is not a preponderance of evidence to establish that any action the Re- spondent Company may have taken on July 19 and 27, 1949, with respect to the alleged discriminatees reflected a preestablished policy of hiring only such millwrights as were members of, or referred by, the Respondent Union.4 Nor do we find sufficient evidence that any 3 Thus, in the initial hiring Period-before the Pipefitters' strike, Gillen hired 13 mill- wrights. Of these, 4 were former Kellogg employees who had worked with Gillen on other Kellogg jobs ; 1 was already employed on the project by another contractor ; another had worked as a carpenter for Kellogg; still another was taken from another Kellogg job nearby which was nearing completion ; and 6 others were recommended by other millwrights already on the job. Similarly, in the second period, of the 17 mill- wrights employed on the project on and after July 19, 1949, 5 had been recalled after previous layoffs ; and all but 2 of the others came directly to Gillen, were recommended by other employees, or transferred from other crafts working on the project. Only 2 were sent by the Carpenters. They worked for about a month and were discharged for "loafing."' In finding the existence of a discriminatory policy, the Trial Examiner also relied on an alleged telephone conversation between Sims and Prentice on July 19, 1949, in which Prentice allegedly told Sims that it was necessary to join the Carpenters Union THE M. W. KELLOGG COMPANY 529 conduct by the Respondent Company on July 19 and 27 establishes unlawful discrimination against the seven applicants for millwright jobs. At the outset, we find, contrary to the Trial Examiner, that the Re- spondent Company had no millwright work available for the appli- cants. The record shows that the Company's pipe fitters were on strike from June 1, 1949, to July 18,1949. Millwright Superintendent Gillen testified that during the strike all millwrights were laid off. ).Manager Emerson testified that on July 19-the first day after the strike ended-the Company was "only attempting to get [its] foremen back where they could reorganize the work and begin"; that the Company sought first to bring back the millwrights who had been laid off be- cause of the strike; and that his subordinates had contacted these men. Prentice of the personnel office testified that on July 19 the Company "was engaged in rehiring some of the men who were on the project prior to the work stoppage," and according to Curlee, the executive assistant, it was for that reason that the Company was not interview- ing any millwrights on July 19. Gillen further testified that during the afternoon of July 19, Sims of the JAM telephoned and told him that he had several men he wanted to put-to work there, and Gillen re- plied that "at the present time" he would not be in a position to use new men; that the Company was in the process of recalling layoffs; and that "we wanted to reemploy all of those that were in our employ before the strike." As already indicated, the Company's personnel records show that on July 19, Foreman Boatwright, who had been em- ployed there before the strike, was rehired, and that on the following day, July 20, the Company put to work two millwrights both of whom had worked on the project as millwrights before the strike. None of this evidence was contradicted.5 to work as a millwright on the job. The record shows that although Sims at first testi- fied to only one telephone conversation with a Kellogg official in July 1949, who told him the Company was not hiring anyone at the time, he later testified to another tele- phone conversation with Prentice. On the basis of the record as a whole, including the uncontradicted evidence of the telephone conversation between Sims and Gillen on the same day which supports Sims' original statement as to what the Kellogg official in ques- tion told him, the undisputed testimony in the record that Prentice had nothing to do with the hiring of millwrights, and the evidence set forth above relating to the Com- pany's actual hiring policy, we conclude that the statement by Prentice-even if made- did not truly reflect the policy of the Company. It must be noted, of course, that there is no allegation that the statement was itself a violation of the Act. ' Cf. Daniel Hamm Drayage Company, Inc, 84 NLRB 458 In that case the Board regarded as immaterial the unavailability of work at the time the applicants were refused employment There, however, the Board found that the employer had adopted a dis- criminatory policy as a result of which future reapplications, when work was available, would have been futile. As we have found no such policy to have existed in this case that decision is not applicable here. It is true that in the case of Gardner, who applied on July 27, the Respondent Company was in the process of hiring millwrights. That fact alone distinguishes his case from that of the other six. As our decision does not turn, however, on that factor alone we see no justification for reaching a different result as to him. 953841-52-vol. 91 35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, the record shows that the only persons to whom the ap- plicants spoke were the guards employed by the Texas Company. Ac- cording to the evidence, the guards, with varying degrees of certainty, told the applicants that they could not be admitted unless they had a referral card from the Union. However, in accordance with estab- lished Board policy, before we can hold the Company responsible for the statements of the guards, we must find that the Company either authorized or ratified this conduct. As the Board stated in the Dravo case: This Board has never held that the acts of plant guards are un- fair labor practices which can be imputed to an employer in the absence of circumstances indicating that the employer authorized or ratified the conduct in question. In this respect, guards and other plant protection employees are quite different from fore- men or other supervisory personnel. Although it is reasonably clear what the guards said during the incidents here under consideration, it is by no means clear from the evidence, however, why they said it and that they had been so in- structed by the Respondent Company as part of a policy to hire only members of the Carpenters. In discrediting the denials of the Com- pany's representatives Curlee and Prentice that they had instructed the guards to admit only job applicants who had union referral cards, the Trial Examiner relied upon what he considered contrary " admis- sions" by the guards. Yet of the 2 guards who testified, one of them Gamble, stated that he had received no direct instructions, but that word had spread around "from gateman to gateman" that "if job applicants were sent to the job site with referrals to send them on down." Whisnant, the only other guard who testified, stated that he had received instructions from Curlee and Prentice, but he char- acterized these instructions as an order not to let anyone "come into the plant without a referral or clearance or without contacting Mr. Emerson or [Curlee or Prentice]," and his testimony must be evalu- ated in the light of other evidence in the record which makes it clear that the Texas Company guards were charged with the responsibility for keeping anyone off the Texas Company property, on which the construction job was located, who had no real business there. Viewed thus, it is reasonable to believe that Whisnant's instructions were to permit no one on the property without first contacting Emerson, 6 Dravo Corporation, 52 NLRB 322 , 326-327 . This principle has been consistently applied in unfair labor practice proceedings . Huntington Precision Products, 65 NLRB 1439 , 1440 ; Wilson & Co Inc., 63 NLRB 636. In addition to the foregoing cases which involved guards, the principle has similarly been followed in unfair labor practice pro- ceedings involving other nonsupervisory employees . The American Thread Company, 84 NLRB 593; The Solomon Company, 84 NLRB 226; J. S. Abercrombie Company, 83 NLRB 524; Joy Togs, Inc, 83 NLRB 1024, Bibb Manufacturing Company, 82 NLRB 338. THE M. W. KELLOGG COMPANY 531 Curlee, or Prentice, or unless the person seeking admittance had a union referral card as evidence that he was seeking employment and thus had some business there.? Such instructions come within the terms of Whisnant's so-called "admission," and yet fall short of any evidence of instructions to keep job applicants out solely for dis- criminatory reasons. We find this view of the guards' instructions more persuasive than the Trial Examiner's interpretation, particu- larly in the light of the analysis of the actual hirings, both before and after July 19, which shows that in only 2 out of the 30 instances where millwrights were hired did the Company rely on a referral from the Union. Under the circumstances, we reject the Trial Examiner's finding that on July 19 and 27, 1949, the Company, for discriminatory reasons, instructed and caused the guards to refuse admittance to the individuals in question. For all of the reasons stated above, we conclude that the General Counsel has failed to demonstrate by a preponderance of evidence that the Respondent Company discriminated against the seven job ap- plicants in question in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. 2. Our conclusion above with respect to the allegations of violations by Respondent Company is not, in itself dispositive of the allegation that the Respondent Unions violated Section 8 (b) (2), for the latter section proscribes not only the actual causing of discrimination but also attempts to do so. That aspect of this case is predicated on the contention that the Respondent Unions, as the Trial Examiner found, presented the Respondent Company with the trade rules at the outset of the project, that such trade rules required preference in employ- ment to members of the Carpenters, and contained an implied threat to strike if such rules were not complied with, which threat -was a continuing one, operative on July 19 and 27. However, we have al- ready considered above the evidence in the record before us relating to the manner in which the trade rules were presented to the Respond- ent Company, and found it insufficient to establish that the trade rules relating to union preference-were even discussed with the Respondent Company, much less made the basis for a proposal restricting the hir- ing of millwrights. We find, therefore, that this aspect of the com- plaint is likewise unsupported by a preponderance of the evidence. Accordingly, we shall dismiss the complaint in its entirety. ° See, for example , Curlee's testimony in which he states : The referral card was used among many other documents for the purpose of restricting the refinery only to people who had business , legitimate business in there. The referral card is just part of the total picture. That was one method or one part of the proceeding wherein other authorized people were permitted to come in and talk. As I say, we talked to many , many people and hired many , many people out there and a whale of a lot came in without referral cards. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaints in this case against Re- spondent, The M. W. Kellogg Company, and Respondents, United Brotherhood of Carpenters and Joiners of America, AFL, and its Local Union No. 943, be, and the same hereby are, dismissed. MEMBER REYNOLDS, dissenting : Contrary to the majority, I would find, like the Trial Examiner, that the record as a whole, fully summarized in the Intermediate Re- port, establishes that a discriminatory hiring policy was utilized in the recruitment of employees for millwright work. The record ad- mittedly shows that only members of the Carpenters were in fact hired. That this result was not mere coincidence but rather the prod- uct of a predetermined discriminatory plan to hire none other than members of the Carpenters, is established to my satisfaction by the combination of circumstances relied upon by the Trial Examiner. The existence of a long-standing jurisdictional dispute between the I. A. M. and the Carpenters over millwright work is well known in the industry. In the summer of 1948, when the project first got under way, the Employer's resident manager read the Carpenters' trade rules which required the hiring of members for supervisory jobs and the maintenance of closed-shop conditions. Before actual hiring began, he met with the Carpenters' representative for the purpose of ascertaining and comporting with area practices. The conduct of the parties convinces me that it was then informally agreed, in accordance with Carpenters' trade rules, that only its members would be hired for millwright work. Thus, consistent with these trade rules, the Employer hired union members as millwright superintendent and foreman, delegating to them the exclusive power to hire millwrights. Such hirings were in fact limited to known members of the Carpenters, including two members who were directly referred by that Union. Moreover, guards, acting upon instructions of the Employer, refused to admit the complainants (I. A. M. members) on the premises to apply for work because they did not have referral cards from the Carpenters. When those men persisted in their effort to obtain employment, Pren- tice, the employer's personnel representative, and the Carpenters' representative stated on separate' occasions that only Carpenters' mem- bers would be employed on the project. I would accordingly find, like the Trial Examiner, that maintenance of unlawful closed-shop conditions on the job constituted a violation of Section 8 (a) (3) of the Act by the Respondent Kellogg and a viola- tion of Section 8 (b) (2) of the Act by the Respondent Union. How- ever, unlike the Trial Examiner, I do not base the 8 (b) (2) viola- THE M. W. KELLOGG COMPANY 533 tion on any strike threat by the Union, but rather on the fact that the Union jointly participated in the institution and maintenance of the unlawful hiring arrangement. I would also find, like the Trial Examiner, that the refusal to employ the named complainants because of the discriminatory hiring practice constituted unfair labor prac- tices by both Respondents, within the meaning of Section 8 (a) (3) and 8 (b) (2) of the Act. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. Intermediate Report James R. Webster, Esq., for the General Counsel. Mr. L. M. Fa#an, of Fort Worth, Tex., for International Association of Machinists. C. A. Kothe,, Esq., and R. Robert Huff, Esq., of Tulsa, Okla., for Respondent, The M. W. Kellogg Company.' Francis X . Ward, Esq., of Indianapolis , Ind., for Respondents United Brother- hood of Carpenters and Joiners of America, AFL, and its Local Union No. 943. STATEMENT OF THE CASE Upon first amended charges duly filed by International Association of Ma- chinists through its Lodge 790 (herein called collectively the I .A.M), on August 3, 1949, the General Counsel for the National Labor Relations Board ( called herein respectively the General Counsel and the Board), by the Regional Director for the Sixteenth Region ( Fort Worth, Texas ), issued complaints both dated April 19, 1950, which were on the same date consolidated for hearing , against Kellogg Construction Company 2 hereafter called Kellogg, and United Brotherhood of Carpenters and Joiners of America , AFL, and its Local Union No. 943, labor organizations hereafter collectively called the "Carpenters" or "Respondents Carpenters," alleging that Respondent Kellogg had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section b (a) (1) and , (3) and Section 2 (6) and (7) of the National Labor Relations Act as amended , 61 Stat. 136, herein called the Act, and that Respondents Carpen- ters had engaged in and were engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (b) (2) and Section 2 (6) and (7) of the Act. Copies of the respective complaints and the first amended charges, together with notice of hearing and the order consolidating complaints , were duly served upon Kellogg, the Carpenters, and the IAM. With respect to the unfair labor practices, the consolidated complaints alleged in substance that: (1) Kellogg was engaged in 1949 in the construction of a catalyst 3 for the Texas Company at its plant in West Tulsa, Oklahoma, which unit The Texas Company will use in processing gasoline and other petroleum products for sale, distribution, and transportation in interstate commerce ; on and after July 19, 1949, Kellogg did discriminate against Orvel Wolf,' G. H. Woollard, Robert C. DeLone, C. O. Woollard, Snowden A. Davidson, and E. H. Foster, and on and after July 27, 1949, did discriminate against G. N. Gardner, i The name of Respondent Company appears as amended at the hearing. s Amended at the hearing to The M W. Kellogg Company Amended at the hearing to "fluid Catalytic cracking and gas recovery unit." 4 His correct name is Orville E Wolf. ,534 DECISIONS- OF- -NATIONAL LABOR RELATIONS BOARD in regard to their terms or conditions of employment by requiring as a condition to their employment their presentation of referral cards from the Carpenters, or cne of them, and by refusing to employ or accept their employment application or otherwise consider each of them for employment ; Kellogg discriminated as afore- said against these applicants because they did not join the Carpenters or obtain referral cards from said unions ; the Carpenters did cause or attempt to cause Kellogg from and after July 19, 1949, to discriminate against its employees and/or the above-named applicants for employment in violation of Section 8 (a) (3) of the Act, by entering into an agreement or arrangement with Kellogg , requiring Kellogg to employ for millwright work at West Tulsa only members of the Carpen- ters who have referral cards from Carpenters' Local No. 943, and by and through the Carpenters' bylaws and trade rules and otherwise the Carpenters threatened Kellogg with work stoppages if nonunion Carpenters should be employed by it, and thereby caused Kellogg to require its millwrights or applicants for such work to become members of the Carpenters , and also cause Kellogg to refuse employ- ment to the above-named applicants because they were not members of the Carpenters, and to refuse employment to all applicants for millwright work who were not members of that union ; and by the acts described above Respondent Kellogg violated Section 8 (a) (1) and 8 (a) (3) of the Act and Respondents Carpenters violated Section 8 (b) (2) of the Act. Kellogg filed an answer denying the commission of any unfair labor practices and the jurisdiction of the Board, and alleging as a separate defense that the charges upon which the consolidated complaints issued were filed by the IAM as part of a program or policy designed to obtain an objective unrelated to the rights protected by the Act, and that the applications of the persons named in, the complaints for employment at Kellogg were not made in good faith with the desire or intention of obtaining employment but solely for the purpose of carrying out the illegal objective of the IAM. T.he Carpenters filed an answer which denied the commission of any unfair labor practices and the jurisdiction of the Board, and stated as separate defenses that the consolidated complaint failed to state a cause of action against either of the Respondents Carpenters, that the Board lacked jurisdiction over the Carpenters and the subject matter of the consolidated complaints because said complaints were based on Section 8 (b) (2) of the Act which section is unconstitutional in that it contravenes the First, Fifth, and Thirteenth Amendments of the Consti- tution of the United States. Pursuant to notice a hearing was held at Tulsa, Oklahoma, on May 16, 17, 18, 19, 29, and 30, 1950, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and all Respondents were represented by counsel and the IAM was represented by its Grand Lodge repre- sentative. All parties participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the outset counsel for the Carpenters entered a special appearance for Re- spondent United Brotherhood, for the purpose of objecting to the method of Service of the amended charges, consolidated complaints, and notice of hearing upon that organization. This motion was denied! The Carpenters also moved to dismiss the complaints at the outset upon the grounds that: (1) The controversy was moot because the construction project mentioned in the complaints had long since been completed; (2) the matters in 5 Respondents Carpenters entered a general appearance in the case by filing a joint answer which did not raise the question of service ; both Respondents through their counsel fully litigated the issues raised by the pleadings. THE M. W. KELLOGG COMPANY 535 controversy involved a jurisdictional dispute between the Carpenters and IAM with respect to certain work tasks, which could only properly be raised in a proceeding under Section 10 (k) of the Act; (3) in this case the Board could only award a money judgment against Respondents if the unfair labor practices charged were found, which would not effectuate the policies of the Act, and that by the award of such money judgment the Board would, by indirection, overrule a work assignment legally made by an employer; (4) Section 8 (b) (2) of the Act was not intended to and does not cover applicants for employment; and (5) Section 8 (b) (2) of the Act was unconstitutional. These motions were denied e Early in the hearing counsel for Kellogg invoked the rule for sequestration of witnesses as against witnesses for the General Counsel. The Trial Examiner applied the rule to exclude all witnesses of General Counsel except the Grand Lodge and local representatives of the IAM and the job applicants named in the consolidated complaints against whom Kellogg and the Carpenters were alleged to have discriminated. At different points in the hearing Kellogg moved variously upon the existing state of the evidence to dismiss the complaint for lack of proof, for misconception of remedy, for alleged abuse by the charging party of the processes of the Board, for a continuance of the case and severance of the com- plaints on the same grounds, and for reassignment of the case for hearing to another Trial Examiner All these motions were denied.? At the close of the General Counsel's case, Kellogg renewed its motions to dismiss the complaints upon grounds previously stated during the hearing and also for lack of proof. These motions were denied. The Carpenters renewed their motions to dismiss the complaints upon the jurisdictional and other grounds urged at the outset of the case and in their answer, and also for lack of proof ; these motions were like- wise denied The Carpenters' motion at the close of the Board's case for a continuance to-enable them better to prepare their defense was denied. During the introduction of testimony by General Counsel in rebuttal, Kellogg moved to strike from the evidence a copy of the bylaws and trade rules of Carpenters Local Union No. 943 which were in effect during 1948; decision on that motion was reserved. That motion is now denied for reasons which will be discussed below. At the close of the case Kellogg moved for dismissal of the complaints upon all grounds previously stated and the additional ground that General Counsel had failed to prove his case by a preponderance of the evidence. 'To the extent that these motions involved requests for a severance as to Kellogg and for a dismissal or rehearing based upon the conduct of the hearing, they were denied ; the motions for dismissal upon the merits were taken under advisement, and are disposed of by the findings and conclusions set forth in this Report. The Carpenters renewed their motions to dismiss upon all the grounds previously stated ; those motions were taken under advisement The renewed motion to dismiss on the ground the controversy is moot is hereby denied.' The renewed motion to dismiss based upon the alleged unconstitutionality of Section 8 (b) (2) of the Act is likewise denied 61n National Maiitime Union of America, 78 NLRB 971, Lloyd A. Fry Roofing Com- pany, et at, 89 NLRB 854 and Rite-Form Corset Company, Inc , 75 NLRB 174, the Board has held that it will not pass upon questions regarding the constitutionality of the Act and will assume that it is constitutional until the courts-have decided otherwise T The motions for severance, continuance, and reassignment of the case to another Trial Examiner, so far as based upon rulings of the Trial Examiner and his conduct of the hearing, were withdrawn by counsel for Kellogg in his oral argument at the close of the case. 8 See N. L R B v. Local 74, United Brotherhood of Carpenters, et al, 181 F. 2d 126 (C A 6) enforcing order in 80 NLRB 533, and cases cited in the court' s opinion. B See footnote 6, supra. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The motion to dismiss on the ground that the facts show a jurisdictional dispute between the IAM and the Carpenters which should have been brought to a hearing under Section 10 (k) of the Act, is denied. The duty of the Trial Examiner in this case is to determine whether on the record before him violations of Section 8 (a) (1) and (3) and 8 (b) (2) of the Act are involved. The initial decision as to the propriety of proceeding under Section 8 or Section 10 is the prerogative or duty of the General Counsel after investigation of all the facts. Once a complaint based upon Section 8 has been issued by the General Counsel, it is not within the province of the Trial Examiner hearing the issues raised by that complaint and the answer thereto, to determine whether another provision of the Act should have been invoked. The Board has held that the pendency of a proceeding under Section 10 (k) of the Act, based upon the same facts involved in a proceeding under Section 8, is no bar to the prosecution of the latter pro- ceeding. National Union of Marine Cooks & Stewards, et al. (Irwin-Lyons Lumber Company), 87 NLRB 54. I think the rule of that case should apply a fortiori where General Counsel has not seen fit, as here, to institute a proceed- ing under Section 10 (k). The remaining motions are disposed of hereafter in this Report. All parties were given the opportunity to present oral argument at the close of the hearing. General Counsel and counsel for the Carpenters waived oral argu- ment ; counsel for Kellogg argued orally before the Trial Examiner. All parties were afforded an opportunity to file briefs or proposed findings of fact and con- clusions of law, or both. All parties have filed briefs which have been given careful consideration in the preparation of this Report. Kellogg also filed with the Trial Examiner proposed findings of fact and conclusions of law, all of which have been rejected for the reasons set forth in this Report. Upon the entire record in the case and from his observation of the witnesses the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT KELLOGG The M. W. Kellogg Company is and has been in the general contracting business in the course of which it constructs buildings and industrial installations of all types under contract throughout the United States It is a Corporation organized under the laws of Delaware, with its principal office and place of business in the city of Wilmington, State of Delaware. On February 17, 1947, Kellogg entered into contracts with The Texas Company," a corporation of Delaware, under the terms of which Kellogg agreed to design and construct at The Texas Company refinery in West Tulsa, Oklahoma, a "fluid catalytic cracking and gas recovery unit" 11 at a cost of approximately $100,000, such unit to have a capacity of about 15,618 barrels of crude oil per day. The contracts further provided that The Texas Company would furnish all materials and equipment necessary to construct and equip the unit, that Kellogg was appointed the agent of The Texas Company for the procurement of such materials and equipment ; and that Kellogg would furnish all necessary construction tools, erection equipment, and field office equipment. Construction of the cat cracker began about June 1948 and was completed in April 1950 The Texas Company is engaged in the production, refining, marketing, and transportation of crude oil. At its West Tulsa, Oklahoma, plant it refines crude 10 Also called "Texaco" hereafter. 11 In the interest of brevity, the unit will hereafter be called either the "cracking unit" or the "cat cracker." THE M. W. KELLOGG COMPANY 537 oil into gasoline and other manufactured products. The crude oil processed in this plant comes from Oklahoma and other States. In the year 1949 The Texas Company refined at this plant 9,975,000 barrels of gasoline, valued at about 25 million dollars. Approximately 64 percent of that amount of refined products was transported out of the State of Oklahoma to other States. In the operation of the West Tulsa refinery, crude oil is run through a vacuum pipe still which produces "straight run" gasoline ; that product in turn is run through the cat cracker built by Kellogg to produce more gasoline as an end product. The purpose of the cat cracker is to produce more gasoline out of a given amount of crude oil than the vacuum pipe still, an older and less efficient type of equipment For that reason the cat cracker is an essential element in the efficient operation of the refinery." It is clear from the above facts, and I find, that The Texas Company is and has been engaged in interstate commerce at its West Tulsa, Oklahoma, refinery. As early as 1937, the Board took jurisdiction in a representation proceeding under the Act involving the West Tulsa works (The Texas Company, West Tulsa Wo?k.e, 4 NLRB 1S3), and has since taken jurisdiction of complaints based on Section 8 of the Act involving The Texas Company refineries in other States." Both Respondents maintained at the hearing and in their briefs that the Board should not take jurisdiction here for various reasons Kellogg claims its con- struction of the cracking unit was a project wholly and exclusively local in character, because Kellogg built the unit locally under an independent contract, and Kellogg was in no way interrelated with The Texas Company in the opera- tion of the West Tulsa works or otherwise Although built locally, the work was performed by Kellogg, an admitted out-of-State contractor which engages in similar construction projects throughout the United States. The cat cracker was designed and erected in order to increase the efficiency and output of a plant already employed in interstate commerce by a business concern extensively engaged in such commerce. It is obvious that the construction of this unit, and any labor disputes involving it, would have a direct effect on the flow of products from this plant into interstate commerce. In similar circumstances the Board has in the past asserted jurisdiction" Both Respondents point to the lack of proof that Kellogg either bought materials from outside the State or shipped materials in interstate commerce in the course of the project. But the mere absence of movement of materials in interstate commerce for use in the construction does not of itself lessen or negate the impact of the project and any interruption thereof upon interstate commerce as shown by the other facts found about The Carpenters also relies on the facts that the construction was new and the unit had not been used in interstate commerce before. How- ever, the record shows that some crude oil was processed through the unit in late 1049 and that it has since completion been used fully in the production of gasoline which is transported in interstate commerce. I therefore consider this contention to be without merit; a similar argument has recently been rejected by the Board in a building construction case'" The Board decisions cited by the Carpenters in their brief show that the Board has always recognized that it had jurisdiction over construction projects affecting commerce, bout has ' These findings are based on facts stipulated by the parties, the uncontradicted testi. mony of Y A Land, and admissions in the answer of Respondent Kellogg 13 The Texas Company v N L R B , 112 F 2d 744, enfg. 17 NLRB 843, cert. denied 311 U S 712 ; 119 F 2d 23, enfg 26 NLRB 1059 11 See International Brotherhood of Electrical Workers, et al (William Patterson and Samuel Langer), 82 NLRB 1028, enfd 181 F 2d 34 (C A 2) , Lloyd A Fry Roofing Com- pany, at al, and United Brotherhood of Carpenters and Joiners of America, Local 1857 at al , 89 NLRB 854. 15 See Lloyd A I'ry Roofing Company, at al, supra 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD declined to assert such jurisdiction as a matter of administrative discretion upon the finding in each case that the assertion of jurisdiction on the particular facts involved would not effectuate the policies of the Act. In recent cases involving the building construction industry, where it asserted jurisdiction, the Board has followed the same principle, stating that "our abstention from exercising our jurisdiction in construction cases was a matter of administrative choice and not of legal necessity." 'a I am therefore of the opinion that the arguments of Respondents relating to jurisdiction are without merit, and Respondents' motions to dismiss the complaint on this ground are hereby denied. On the basis of the facts found above, I conclude and find that Kellogg was engaged in interstate commerce at its West Tulsa project, and that the assertion of jurisdiction by the Board herein would effectuate the purposes of the Act. H. THE LABOR ORGANIZATIONS INVOLVED Lodge No. 790, International Association of Machinists, United Brotherhood of Carpenters and Joiners of America, AFL, and its Local Union No. 943, are each labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The locale The events related and considered in this Report all occurred at the West Tulsa, Oklahoma, refinery of The Texas Company. The facts stated in this section describe the refinery area as it appeared during the course of the Kellogg construction project in 1948, 1949, and early 1950. The refinery is a large collection of buildings and related structures located on a tract of many acres in West Tulsa on the outskirts of Tulsa, Oklahoma. The refinery area is roughly rectangular in shape and is completely enclosed by a high fence. Entrance to the area is gained through three large gates. Gate No. 1, also known as the "North" or "Refinery" gate, is on the northern face of the fenced enclosure and gives access directly to the existing refinery area on which no construction was in progress in 1949; this gate was used in 1949 by regular employees of The Texas Company employed on the refining operations. Gate No. 2, also known as the "West" or "Construction" gate, is located near the southern end of an inner fence which bisects the refinery area longitudinally ; it gives access directly to the southeastern portion of the refinery area where the Kellogg project was located, and it was used regularly by employees of Kellogg and other contractors working in that portion of the area as well as by applicants for jobs with those contractors. The last gate, known as the "Truck" gate, is located in the west face of the outer fence enclosure, and gives access to a large, undeveloped tract in the western half of the whole area, which was used for parking of employees' cars and entrance of material and merchandise trucks serving the construction projects. All three gates were patroled and guarded by a force of uniformed guards employed by The Texas Company, who worked in three shifts around the clock, shifting from gate to gate according to a schedule. 16 See Brown and Boot, Inc., ct al, d/b/a Ozark Dam Constructors, 77 NLRB 1136; United Brotherhood of Carpenters and Joiners of America, AFL, Local 74, et at (Ira A. Watson Company, d/b/a Watson's Specialty Store), 80 NLRB 533; Guy F Atkinson Co, 90 NLRB 143. Other cases cited by the Carpenters generally involved construction of other statutes and different sets of facts, and are considered inapposite here. THE M. W. KELLOGG COMPANY 539 The cat cracker was built by Kellogg in the southeasterly portion of the refinery area at a distance of about two city blocks from the "Construction" gate (No. 2). From the outset of the actual construction in June 1948, the Kellogg supervisory staff established its headquarters or field office in a building provided by The Texas Company adjacent to the actual site of the cracking unit. During the early stages of construction, Kellogg maintained its personnel and employment office in a separate building located just inside the "Construction" gate and adjacent to the guard's shack at that gate. Sometime after October 1948, that, office was moved back into the refinery area opposite the Kellogg field office in order to eliminate confusion in handling applicants for employment with other contractors, who also passed through or applied at the "Construction" gate.17 B. The personnel involved At the times in 1948 and 1949 mentioned in the record and pleadings, D. T. Emerson was the resident manager of Kellogg in charge of the West Tulsa project; Warren W. Curlee was his executive assistant, having direct charge of certain administrative departments involved in the work, including the personnel department ; Frank V. Prentice was the personnel records manager at the project, supervising the personnel office in the preparation, maintenance, and filing of the necessary personnel records ; S. Handler was the construction superintendent on the job, working directly under Emerson and responsible for all construction ; he acted for Emerson when the latter was absent from the project. James A. Gillen was the superintendent in charge of all millwright work on the project, and had the duty of hiring, firing, and supervising the work of all millwrights. In 1948 R. G. Arrington was the business agent or representative of the Carpenters' Local No. 943; in 1949 and at the time of the hearing William D. Scott was the financial secretary and representative of the local. In 1949 Harold Sims was the assistant business representative of Local No. 790 of the IAM. Joe Whisnant, H. L. Gamble, and Harley Rogers were employed by The Texas Company as guards or gatemen working at times hereafter mentioned on the three gates to the West Tulsa refinery. Orville E. Wolf, G. H. Woollard, C. O. Woollard, Snowden A. Davidson, Robert C. DeLone. E. H. Foster, and G. N. Gardner, all members of Lodge 790 of the IAM, are the job applicants named in the consolidated complaint. C. The applications for employment The controversy in this case arises out of the attempt of seven members of Lodge 790, IAM, named above, to secure employment in the month of July 1949 as millwrights at the West Tulsa project of Kellogg under circumstances set forth below. On a date not clearly specified but about 3 weeks before July 19, 1949, E. H. Foster went to the Kellogg project to seek employment. About 9 it. in. he approached •a Texaco guard at the north gate of the refinery and asked for the Kellogg personnel office. He was referred by that guard to the west gate (gate No. 2) where he again asked to see the man who did the hiring for Kellogg. the Texaco guard at that gate told him he would have to have a referral card ,from the Carpenters' union in order to get in. Foster then left the premises. On July 19, 1949, Orville E. Wolf drove out to the Kellogg project about 9 a. W. to seek employment, on the recommendation of his grocer who had formerly 17 These findings are based on the uncontradicted and credited testimony of Curlee, Gillen, Whisnant, and Gamble, and a plat of the refinery area admitted In evidence by stipulation (General Counsel's Exhibit No. 2). 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked for Kellogg. He approached guard Joe Whisnant at the'truck ( outer) gate on the west side , asking Whisnant how to get down to the Kellogg personnel office. Whisnant told him that he could not go down there unless he had a referral card from a union. Since Whisnant had not mentioned any specific union, Wolf then drove to the IAM office in Tulsa to find out if his union was sending any men to the project. At the IAM office he asked Sims about getting work at Kellogg and Sims said he thought he could pla , e a number of men at that project. Wolf expressed doubt about this, stating that he had not been able to get through the gate that morning. Wolf drove back to the project with Sims and other IAM members later that day as set forth in the next paragraph. Harold Sims, the assistant business agent of the IAM Lodge No. 790, had the duty, .among other things, of finding jobs for IAM members, who periodically' sought employment through him . In the early part of July 1949, in the course of seeking work for his members, he had called the personnel office of Kellogg at the West Tulsa project on the telephone in an effort to place some of his members on that job. The man he talked to, whose name he cannot recall, advised him they were not hiring anybody at that time. Prior to July 19, 1949, Sims had heard from other IAM members that they had been unsuccessful in getting work at that project . There had been a strike of another craft (pipe- fitters ) at the job which had closed down the work completely for some weeks before July 18, 1949. The strike had been settled in the week before that date, and Sims decided on the 19th to take some of his members to the project himself in another effort to get work for them. Accordingly, he suggested to G. H. Woollard, C. O. Woollard , E. H. Foster, Robert C DeLone, Orville E. Wolf, and Snowden A. Davidson, who were in the office at the time, that they accompany him to the project for that purpose . The group drove out to the project in Sims' car shortly after noon on the 19th . They drove up to the truck ( outer ) gate on the west side , where they met guard Joe Whisnant. Sims told Whisnant that his companions were millwrights or erection machinists seeking employment on the Kellogg project, and asked if they could see the Kellogg personnel man about jobs. Sims asked Whisnant if they "have to go through the Local to get in there," and Whisnant replied "that's our orders," explaining that they could not go to work on the project unless they had referral cards from the union, meaning the Carpenters' union. However, he permitted them to drive through the truck gate down to the inner , or construction , gate to talk to the guard there. Sims asked the guard on that gate, Harley Rogers, to admit them to visit the Kellogg personnel office . Rogers showed them where it was, but refused to admit them through the gate, saying they could not get in to see the personnel man or to work there unless they had referral cards from a union. Sims told Rogers the men with him were millwrights or erection machinists looking for work, and Rogers said that work came under the Carpenters ' union, that they would have to get referral cards from that union . Sims then asked Rogers his name, which the latter gave him, and the group drove off the premises. In accordance with the remarks of both guards that the men would need re- ferral cards from the Carpenters' union, Sims suggested that his companions try to secure such cards from the Carpenters, and he thereupon drove them to the Carpenters ' hall in Tulsa. The six went into the Carpenters' hall while he waited in his car outside. At the Carpenters' hall, the IAM members spoke to William D. Scott, financial secretary of the Carpenters . One of the Woollards asked Scott if they had to join the Carpenters' union to work at the Kellogg project. Scott said "yes." Foster then asked Scott if they could join the union, and Scott said they could not, saying he already had a long waiting list for membership and that he also THE M. W. KELLOGG COMPANY 541 had a list of members waiting for work. The six left the Carpenters' hall, went back to the car, and reported to Sims what Scott had told them . Sims then drove them back to the IAM office where they made out affidavits stating the events related above for presentation to the National Labor Relations Board 19 After Sims returned to his office, he called the Kellogg personnel office at the project on the telephone, asking for the personnel director ; a man calling himself Prentice answered. Sims asked him if it was necessary to join the Carpenters in order to work on the job as a millwright, and Prentice affirmed that, saying millwrights had to have referral cards from the Carpenters' union. I find this conversation as a fact on the basis of Sims' testimony, inasmuch as Prentice did not deny it, merely stating that he could not recall anyone calling about mill- wright work in the first few days after Kellogg began rehiring personnel follow- ing the termination of wthe pipe fitters' strike. Sometime on July 19,14 Sims also had a talk over the telephone with Gillen, the millwright superintendent of Kellogg on the project, in which Sims identified himself as a representative of the IAM and said he would like to put some of his members to work on the job. Gillen told him that he was not at that time in a position to hire any new men, as Kellogg desired to rehire all millwrights who had been laid off during a shutdown 'of the project due to the strike. Gillen suggested that Sims contact either Emerson or a Mr. Smith (not otherwise identified in the record) about the matter. The circumstances and significance of this conversation will be considered further in the discussion hereafter of Kellogg's practice in hiring millwrights. On July 27, 1943, G. N. Gardner went to the Kellogg project to apply for work as a millwright. He first applied at the north gate, asking the guard about employment with Kellogg. The guard asked him what work he was looking for, and Gardner told him millwright work. The guard then sent him to gate No. 2 on the west side, stating that he believed Gardner would have to get a referral card from the Carpenters' union before he could get employment there. On reaching gate No. 2, Gardner asked for admission to the refinery so that he could see the Kellogg foreman or personnel manager about employment as a mill- wright. The guard there refused to admit him, stating that he would have to go to the Carpenters' local and get a referral card from that union. After that Gardner drove to the Carpenters' hall in Tulsa where he asked a man in the office about joining the Carpenters so that he could get work at Kellogg. The man told him that they had more millwrights available for work than they had calls for, and refused to give him a referral card or let him apply for membership in that union 2° 18 The findings in this paragraph are based on the uncontradicted and credited testimony of C 0 Woollard, Foster, and DeLone Scott, the Carpenters' representative, was present throughout the hearing and testified on behalf of General Counsel ; he did not deny that lie talked with the IAM members at his office as related by them 11 The facts as to this conversation are based on the credited testimony of Gillen. Sims did not testify about, or deny , the conversation . Gillen's testimony does not state the exact hour on July 19 when it took place. 20 The above findings are based on the composite testimony of Sims, G. H. and C. O. Woollard, DeLone, Foster, Wolf, and guards Joe Whisnant and II. L. Gamble The testi- mony of these witnesses was mutually corroborative as to the main aspects of the events of July 19 ; their testimony varied in minor details ; they did not all remember exactly the same details of those events ; the IAM members corroborated each other and the guards as to the substance of their conversations with the guards on the dates mentioned, but did not state the conversations in exactly the same terms . Whisnant and Gamble were vague as to details , but this is not surprising in view of their advanced ages and the fact that they met over 1,000 Kellogg workers (not counting employees of other con- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the Respondents , particularly Kellogg, claim that the seven IAM members were not bona fide applicants for employment on the dates they visited the Kellogg project, and that their visits, particularly the group visit of July 19, 1949, were episodes deliberately planned by Sims in the hope of securing a rejection of their applications by Kellogg, in order that IAM could create a case upon which the Board could be induced to charge the Respondents, particularly the Carpenters, with the violations of the Act set forth in the complaint herein, all -in an effort to carry out the alleged long-time objective of IAM to wrest jurisdic- tion of all millwright work from the Carpenters. On this theory Kellogg made motions throughout the hearing for dismissal of the proceedings upon the ground that the Board's processes were being improperly used to foster this objective of the IAM and thus to create litigation, and were therefore cham- pertous. In support of these contentions Respondents rely on the following facts: (1) None of the applicants brought their tools with them when they applied at the gate, which is customary when a millwright seeks a job; (2) none of the applicants ever applied for work with Kellogg after the applications of July 19 and 27; (3) at least one applicant, Gardner, was steadily employed at the time of his application at an airplane plant in Wichita, Kansas; (4) there was no work for millwrights, and none was being hired by Kellogg, on July 19, to the knowledge of Sims; (5) none of the applicants was qualified to do refinery millwright work of the type required on this project, and for that reason they would not have been hired by Kellogg, even if they had been interviewed. These contentions will be considered in order. At the outset, certain other facts in the record should be noted. All of the applicants, except Gardner, testified without contradiction, and I find, that they were unemployed at the time of their applications at the project, and that they had applied for work elsewhere, both before and after July 19, personally and with the help of Sims and the IAM ; Gardner applied for work at the project while he was on leave of absence from his job at the airplane plant in Kansas because he desired employment near his home in Turley , a suburb of Tulsa, and also for the natural reason that millwright work at Kellogg paid around $2.43 an hour , as against his pay of $1.35 an hour at the airplane plant, in Wichita. Gardner sought employment at the project on July 27 at the sug- gestion of a friend in Tulsa, Mace Stephens . Wolf applied for work on the morning of July 19 at the suggestion of a former Kellogg employee. These facts militate against Respondents' basic contention that Sims engineered the whole plan as an artificial mass application for employment for ulterior motives. 1. I consider the fact that the' applicants did not have their tools with them of no significance ; all of them lived in or near Tulsa and could have procured their tools quickly if they had been interviewed and accepted for employment. 2. The experience of all the applicants at the refinery gates, the subsequent refusal of the Carpenters' representative on the 19th to give the group of six referral cards or permit them to join the Carpenters, and Prentice's statement to Sims that afternoon confirming Scott's statement that millwrights had to have referral cards from the Carpenters to work on the job, all clearly indicated to them that further attempts to secure employment at the project would he useless. tractors) entering and leaving the west gates daily while construction was underway. However, Wbisnant clearly recalled the visit of the 6 men on July 19 and the main facts relating to it, largely because the various craftsmen had not yet returned to work after the strike, and the absence of activity on the site made the visit of the 6 stand out. From these circumstances and my observation of the demeanor and manner of testimony of these witnesses , both on direct and cross-examination , I consider their testimony on this subject reliable and credible. The findings of the events of July 27 are based on the uncontradicted and credited testimony of Gardner. THE M. W. KELLOGG COMPANY 543 It is not surprising that after all these rejections, most of them on the same day, they made no further efforts to contact Kellogg by telephone or application to its Tulsa office or otherwise. Under the circumstances, it was not necessary." 1. The reasons for Gardner's application for employment on the 27th, adverted to above, sufficiently indicate the bona fides of his application. 4. While it is true that there was no work for millwrights at the project on July 19, the testimony of Emerson, Curlee, Prentice, and Gillen establishes, and I find on the basis thereof, that the pipe fitters' strike, which had shut down the whole project, had ended by Monday, July 18, 1949; on that day Kellogg resumed operations ; the Kellogg supervisory force, including Curlee and Prentice and their staff, and Gillen, were busy at the project from July 18 on recalling and rehiring, former employees in order to resume the work ; July 19 was the second day of the rehiring ; on that day Gillen rehired Boatright, a former millwright employee, as millwright foreman ; Gillen was successful in rehiring only two former millwrights, who returned on the 20th, and thereafter Kellogg increased its millwright torce by hiring new men on July 22, 25, and 29, Auugst 1 and 19, and others thereafter. From these facts it is clear, and I find, that on July 19 and thereafter Kellogg had employment available for which it intended to and did hire millwrights.23 5. Both Respondents argued that the TAM job applicants lacked the experience and qualifications to perform millwright work of the type required on this project,24 and would not have been hired, even if they had been interviewed. n See Daniel Hamm Drayage Co., Inc, 84 NLRB 458 ^ See General Counsel's Exhibit No. 5, a stipulated recapitulation of Kellogg' s records of employment of millwrights. zs Cf. Montgomery Hardwood Flooring Company, Inc., 72 NLRB 113, 122-124; N. L. R. B. v. Waumbec Mills, Inc., 114 F. 2d 226 (C. A. 1). Respondents rely on certain testimony of Whisnant to the effect that he did not admit the IAM members through the construction (inner) gate on the 19th because there was no one on the project to talk to them. However, this part of his testimony is over- weighed by (1) the stipulated fact, and his own testimony elsewhere in the record, that on the 19th he worked on the outer (truck) gate from 7 a. in. to 3 p. in ; (2) his own statement that he talked to the six men at the outer gate; (3) the credited testimony of Sims and C. 0. Woollard that Whisnant was at the outer gate and passed them down to the inner (construction) gate where they talked to guard Rogers ; (4) the admitted facts that the outer gate gave access only to a general parking area, entrance through that gate was not restricted, and the inner gate was nearest to the personnel office and the project site itself; (5) Gamble's credited testimony that, while working on the outer gate, he sent all job applicants down to the inner gate where Kellogg handled employ- ment applications , (6) the credited testimony of Emerson, Curlee, and Prentice that they and their staff were busy at the personnel office that day trying to recall and rehire former employees; and (7) Whisnant's own admission he knew they were on the job that day. From these facts I am convinced that, at the point in his testimony cited by Respondents, Whisnant was confused about his exact conversations with the IAM group, the place of that discussion and his action thereafter, and that his confusion was caused by the circumstance that the project was still bare of workmen, as Kellogg had only begun to recall employees the day before For the above reasons I do not credit that portion of Whisnant's testimony, summarized at the beginning of this footnote. u The construction of the West Tulsa cracking unit involved, among other work, the setting, erecting, levelling and aligning, lubricating, testing and final preperformance inspection of heavy and expensive machinery, including pumps, compressors, and othcc types of refinery machinery. These machines had to be erected, aligned and set in ac- cordance with precision measurements and specifications, so that they would connect precisely and operate permanently with each other under widely varying temperature and pressure conditions. This type of work required the services of highly skilled mill- wrights, also called erection machinists, who were experienced in work involving close tolerances and precision installations. After such refinery machinery is in operation, its maintenance and repair, including any necessary resetting and realigning, can be performed either by millwrights or machinists. 544 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD However, the ur contradicted and credited testimony of C. O. Woollard, G. H. Woollard, Davidson," Foster, and Gardner indicates that they had each per- formed work involving the setting, aligning, and installation of heavy ma- chinery such as pumps and compressors, from which it appears that, while they may not have worked on refinery machinery specifically, they had done com- parable millwright work in the past. Furthermore, it appears that, in hiring millwrights on this job, Kellogg was not as insistant upon securing only mill- wrights with specialized refinery experience as Gillen, the millwright super- intendent, attempted to indicate in his testimony. Although he maintained that previous refinery millwright experience was a prerequisite, or at least a "major qualification," for employment, and that he tried to hire only men with that type of experience, he did not hold to that standard. He hired Frank P. Walsh and Howard Worley after July 19, 1949, although they had been working pre- viously as carpenters on the project, and Gillen himself maintained that car- penters were not qualified to do millwright work ; nevertheless he transferred them at their request to refinery millwright work ; he attempts to justify this by saying he knew they had done millwright work previously on construction proj- ects, but the extent of their experience as millwrights does not appear in the record, nor does it appear that they had any refinery millwright experience. He also transferred Ira V. Powell, another carpenter on the project, to mill- wright work on the mere representation of Powell that he had had millwright experience and the statements of other men on the job that he "was a good millwright" ; he did not investigate, and could not testify at the hearing, as to the extent of Powell's millwright experience. Furthermore, Gillen took on Whitcraft 25 and Kolb as millwrights in August 1949, after they had been sent out by Scott of the Carpenters, merely on Scott's representation that they were "good" men, but after they worked a month he released them for doing poor work, because he concluded that their experience and ability was no better than that of a millwright apprentice of 2 years' experience ; there is no proof that these men had any refinery experience ; Gillen's discharge of them indicates that they were poor millwrights, much less refinery millwrights. It is also signifi- cant that in 1939 or 1940, according to Emerson, Kellogg bad employed mill- wrights, classified as machinists, on another construction job to perform refinery millwright work similar to that required at West Tulsa. It should also be noted that Gillen himself had been a machinist during his early years in construction work, had learned machine erection and millwright work, and had worked his way up to millwright foreman and superintendent ; from 1938 to 1943 he was a member of the IAM and in that period worked as erection machinist or mill- wright on one powder-plant construction job ; he discontinued his membership in the IAM and joined the Carpenters about 1943, just before he began work for Kellogg as a millwright. He knew that two of his millwrights on the West Tulsa job, P. H. and S. S. Burgess, Jr., although members of the Carpenters at that time, had been members of the IAM and were still carrying their IAM cards. The same was true of Russell. The'above facts lead me to the conclusion, and I find, that Kellogg carried out the construction of the cracking unit at West Tulsa with some craftsmen having only ordinary experience as millwrights or erection machinists, and used others of doubtful millwright qualifications, and that refinery experience, while desirable, was not essential to the employment ss Davidson did not appear or testify at the hearing, but the parties stipulated that, if called, he would have testified substantially to the same effect as G H. Woollard, with respect to his past experience. 26 Spelled "Witcraft" in General Counsel's Exhibit No. 5, and spelled both ways in the record. "Whiteraft" appears to be correct. THE M. W. KELLOGG COMPANY 545 of a millwright or erection machinist on that job . I further find from these facts that there is not the great gulf and disparity in skill and occupation be- tween millwrights and machinists which Gillen tried to demonstrate, but rather that the two groups are closely allied in their work and require substantially the same skill in working with machinery and to very close tolerances. In this connection the Board has already considered the work of machinists and mill- wrights in several cases and has found that, while millwrights may ,generally use tools somewhat different from other machinists , their principal function is the erection , installation , movement, and maintenance of machinery , and that the performance of these functions is traditionally identified with the ma- chinist craft 2° While it may be true that millwrights engaged in new refinery construction are generally somewhat more experienced in their craft than others, and may even develop a special added skill in handling refinery machinery, it seems clear that the basic skill of a machinist or millwright in handling heavy machinery and working to close tolerances would enable the craftsman , whether called by one name or the other, to acqune shortly the derivative skill involved in the installation of the heavier equipment and machinery used in refinery construction. The above facts and considerations impel me to the conclusion, and I find, that the two Woollards, Davidson, Foster, and Gardner appeared to have qualifications and experience which, if objectively considered by Kellogg upon an interview with these men , would have warranted their employment as millwrights. The applicants DeLone and Wolf appear to have had no mill- wright or erection machinist experience , but possessed the basic qualifications of machinists. However, in view of the fact that millwright functions have been traditionally identified with the machinist craft, and the further fact that Kellogg had used former machinists as well as millwrights of widely varying ex- perience for millwright work both on the West Tulsa job and previously, I am not convinced that DeLone and Wolf would have been completely unqualified or un- able to handle the millwright work at West Tulsa if given the chance I there- fore conclude and find that the two Woollards, Davidson, Foster, Gardner, Wolf, and DeLone were bona fide applicants for employment at the West Tulsa project on the dates they applied for work as found above. The motions of Respond- ents to dismiss the complaints on the grounds considered above are therefore denied. D The 8 (a) (3) charges 1. Kellogg's practice in admitting job applicants to the project The pleadings, record, and the arguments of the parties present a sharp issue on the question whether Kellogg, by its personnel practices at the project, was responsible for the rejection of the IAM members who applied for jobs as found above. General Counsel argues that the combination of certain facts adverted to below demonstrates that Kellogg hired only millwrights who were members of and had referral cards from the Carpenters and, as part of that practice, instructed and caused The Texas Company guards to refuse admission to the project to any applicants for millwright work who did not present such cards. On the othe rhand, Kellogg argues that the record discloses no casual connection between the rejection of the IAM job applicants at the gates and its hiring practices. 27 Members *of the California State Bi ewers Institute , Southern Division, et al, 90 NLRB 1747 ; A C. Spark Plug Division, General Motors Corporation ( Milwaukee Plant), 88 NLRB 1214. 953841-52-vol. 9 4-3 6 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I have found above, the IAM job applicants were refused admittance to the project on July 19 and 27 by Joe Whisnant and Harley Rogers, Texaco guards, because they did not have referral cards from the Carpenters. In explanation of this action, Whisnant testified that: He had received orders from Curlee and Prentice, of Kellogg, not to admit anyone to the refinery area without a referral card or clearance ^ from either the Carpenters', Pipefitters', or Operat- ing Engineers' unions (which were all AFL affiliates), or without first contact- ing Emerson , Curlee, or Prentice ; many applicants for work in those crafts came to the gates without referral cards, and he told them his instructions were that they would have to "come through the Local." In addition to the applications of the IAM members on July 19 related above, Whisnant recalled that one ap- plicant for a job as carpenter told him the Carpenters' local had sent him out; Whisnant told him to sign the entry book kept at the gate and then asked for his referral card; when the man said he had no referral card, Whisnant said he could not let him go down to the Kellogg personnel office, those were his orders, and that the man should go back to the local that sent him out. Gamble, another Texaco guard, testified that: He received instructions from another guard, whose name he could not recall but whom he relieved, that if job applicants had referral cards from a union, he should send them down to the Kellogg personnel office; when he worked on the truck (outer) gate he usually passed job applicants down to the personnel (inner) gate, 1Vo. 2, where they handled such applicants; when some applicants asked how they could get in to the personnel office for an inter- view, he told them "the plan they had for entering in was referrals" ; when he was stationed at the personnel gate (No. 2), he would always know from the referral cards where a man was going in the refinery, although he did not al- ways examine the card to find out what union he came from. Both Curlee and Prentice denied that they ever gave instructions to the Texaco guards on this subject, claiming they had no authority to do so. I do not credit their denials, however, because other evidence, including admissions by these witnesses, leads me to conclude that they were in constant contact with the guards and execised control over their admission of persons to the project area. I have found above that the personnel office was located adjacent to the construc- tion (inner) gate No. 2 for some time after the construction work started. Curlee testified that while it was located there, applicants for jobs with Kellogg were interviewed by the personnel force at the gate after being announced by the guards ; in some cases Curlee even went to the parking lot outside gate No. 2 to interview friends or others seeking work who were personally known to him. After the employment office was moved back into the refinery area near the Kellogg field office, it was connected with the guard shack at gate No. 2 by tele- phone, over which the guards would announce job applicants who appeared at that gate. Curlee admitted that he talked to the guards on the phone about particular persons applying at the gate, directing the guards to admit them or to give them application blanks to fill out. Gamble testified that when he worked on that gate he often allowed job applicants to go to the personnel office after calling Prentice and receiving authority from him to send the men down to that office. It is clear from the above facts, and I find, that the Texaco guards knew and dealt with both Curlee and Prentice as the personnel officers of Kellogg, and 28 Whisnant defined the "referral card or clearance" as a small card which the union gave workmen to indicate that they had "a right to go in " He was obviou$ly referring to the "working permit" or "working card" issued by the local union under its bylaws to its members which must be presented to and checked by the union steward on the job when the workman reports (See sections 4, 5, 7, 11, 12 and 28 (a) of the 1949 bylaws of Respondent Local No. 943, General Counsel's Exhibit No 4). THE M. W. KELLOGG COMPANY 547 that the guards had continual contact with both of them, and received orders directly from them regarding the admission of job applicants to the project site. These findings are further supported by the credited testimony of Curlee and Emerson that: Kellogg had made an arrangement with The Texas Company whereby no one was to be admitted to the Kellogg project area without some iden- tification, such as written authority from Kellogg in the form of a Kellogg appli- cation blank, or a telegram or letter from Kellogg ordering a man to report for work, or a referral card from a union, or a referral card from a private or govern- mental employment office, or a previous telephone appointment for an interview ; where a person presented himself at the gate after a telephone appointment, either Curlee or Prentice would give the man's name to the guards beforehand, so that when the applicant appeared the guard already had specific authority to admit him; the personnel officers did not interview job applicants unless they presented one of the forms of written identification stated above or had been cleared for entrance by telephone previously. Curlee stated that the above ar- rangement had been made through The Texas Company project engineer, but it is clear from the facts found above that the arrangement was carried out in prac- tice by direct cooperation and contact between Curlee, Prentice, and the guards. On the basis of the above facts I conclude and find, contrary to Kellogg's con- tention, that The Texas Company guards had received orders from Kellogg not to admit any job applicants unless they presented some identification or authority for admission, which included referral cards from any of the three AFL unions working on the job. The manner in which Kellogg applied the above admission practice to millwright applicants will be considered next. Curlee testified that millwright applicants sent to the project with referral cards from the Carpenters had to show those cards to the guards to gain admit- tance to the project for interview and hiring. He does not recall, and there is no evidence in the record which indicates, that any millwright was admitted, interviewed, or hired on the basis of his application blank alone, or on a referral from any private or governmental employment office. Curlee further could not recall any millwrights hired who had not been referred out to the project by the Carpenters or on the recommendation of a fellow employee. The record indicates that at least two men, Whitcraft and Kolb, were sent to the project by the Carpenters with referral cards, and were hired by Gillen, the millwright superintendent, after a discussion with Scott, the Carpenters' representative ; Gillen met the men on the job, after they had been admitted through the gate; he said that the guards at the gate had not called him about them previously, so it is clear that they gained admission to the job by presenting their referral or working cards to the guards. Gillen testified that he secured his millwrights from various sources, but hired them on the basis of his personal knowledge of the men and the recommendations of his millwright foreman and other mill- wrights on the job. Curlee testified that, in the cases of such applicants, Kellogg requested them by telephone, telegram, or letter to report directly to the project. These facts, if considered alone, would indicate that millwrights actually hired were admitted to the project only by means of referral cards from the Carpen- ters, or through written or telephonic authority from Kellogg to report for work. However, Gillen, in testifying as to the circumstances of hiring of each mill- wright actually employed, did not indicate that any millwright hired before July 19, 1949, was ordered to report by telegram, letter, or on the basis of a telephone appointment ; as to those hired after July 19, his testimony and the records produced by Kellogg show that only the last five millwrights hired received telegraphic orders to report for work, and the others do not appear to have been called by telephone or letter. It is therefore clear that all the 548 DECISIONS . OP NATIONAL LABOR RELATIONS BOARD millwrights hired (with the exception, of the last five) zs must have obtained admittance to the project only by presentation of their working cards or permits from the Carpenters. After consideration of all of the above testimony, I conclude and find that all millwrights working on the job gained access to the project when first reporting to work.30 by presenting their working cards or permits from the Carpenters to the guards at the gate." Kellogg's hiring practice with respect to millwrights, which gave rise to this circumstance, will be considered next. 2. Kellogg's practice in hiring millwrights Emerson, resident manager of Kellogg at West Tulsa , came on the job in June 1948. Shortly after he arrived , he examined and read a copy of the bylaws and trade rules of Respondent Local No. 943 , which had been either left at or mailed to the field office before he arrived 32 He read these rules to ascertain the wages , hours, holidays, and other working conditions established in that area for carpenters and millwrights , since it was the usual practice of Kellogg on each job to adhere to the local rules on those matters as established by the crafts which it intended to employ on the job . In accordance with this practice, Emerson recognized the bylaws and trade rules of the Carpenters local union as the terms or conditions under which carpenters and millwrights would work in the Tulsa area. Emerson's exact testimony on this point is as follows : 2D Frazier, Baker, Swafford. Schulz, and Friloux. I attach no significance to the fact that the employment files of these men showed telegraphic orders to report to work. There appears to have been no necessity for such orders as to Baker, Swafford, Schulz, and Friloux, as the testimony of Gillen shows the first two were already working for Foster- Wheeler within the refinery area when Gillen hired them, and the latter two were like- wise working for the same contractor when it terminated its payroll, and Kellogg trans- ferred them to its payroll at the request of The Texas Company so that they could remain on the job to observe the operations of equipment they had helped to install while working for Foster-Wheeler Obviously, these four, while working for Foster-Wheeler, already had some means of identification which enabled them to enter the area each day. The significance of the telegrams sent to them will be discussed below Frazier was the only outsider who received a telegram to report, but he was also a membei of the Carpenters , there was no proof as to how lie gained admittance to the project when he came to work, but in view of the findings as to Kellogg's hiring practices as to millwrights which will be discussed in the next section, I believe and find that he also used his union working permit or card to get into the project 31 After. craftsmen weie hired, they received badges which enabled them to enter the project daily 31 This conclusion is not altered by the testimony of H M Russell, a millwright who worked for Kellogg on the Texaco project both before and after July 19, 1949 He had also worked in 1948 as a millwright on the nearby Midcontineut refinery job of Kellogg, from which he had been transferred to the Texaco job Russell had been a member of Local No 943 since 1945, and in the absence of any denial from him, it may be assumed he held the usual working card from that local in accordance with its rules daring both employments Since neither he nor Gillen testified as to how he gained initial admittance to the Texaco project on each employment, and there is no proof that he had any letter, telegram, or telephonic orders from Kellogg to report to that job, it is reasonable to assume that he, like other millwrights, showed his working card to get through the gates at the outset of each hiring. Russell's tesimony that he did not get a referral card from any union for the transfer from the Midcontment to the Texaco job, and that Scott did not know of the transfer until after the event is not probative on the question as to the method by which millwrights gained admittance to the project for employment. "It is clear from the testimony of Emerson and Handler, his construction superin- tendent, that he saw and read the 1948 edition (General Counsel's Exhibit No 6) in about June 1948. The 1949 edition (General Counsel's Exhibit No. 4) is similar in size,. form, and contents Both booklets were identified by Scott as the official bylaws and'. trade rules of Local No. 943 for the years in question. THE M. W. KELLOGG COMPANY 549 Q. You are acquainted with the trade rules, are you not, or you at least scanned through them? A. Yes. We understand various trade rules as a practice setup in the area that is usually accepted by the local contractors, also contractors such as our company. Q. In other words, you recognized those as the terms that the craft will work according to? A. In general except where there is violations of certain policies. Q. Do you recognize them as the conditions under which the carpenters would work at the Kellogg Company? A. I would say yes. I might qualify that, that the conditions established in the Tulsa area, and we went along with the conditions set up prior to our starting the project. There is no explanation by Emerson or any other officer of Kellogg as to which of the bylaws and trade rules, if any, violated any Kellogg policy. In June or July 1948, Emerson talked to R. G. Arrington, a representative of Respondent Local No. 943,33 several times about the availability of various types of craftsmen for work at the project and the qualifications Kellogg desired in these crafts. The only proof in the record as to the scope and details of these conversations is derived from the testimony of Emerson, who testified as an adverse witness called by General Counsel. His answers to questions of General Counsel regarding the discussions were guarded and vague; he professed to ,remember only discussions about availability of men with certain qualifications, and repeatedly avoided mention of millwrights, although he admits discussing ,"certain classes of men, mainly carpenters," and he knew that he would use millwrights on the job; he could not recall discussion of wages or terms of em- ployment, but he admitted using the Carpenters' trade rules to establish the area practice "as to wages, particularly wages" and holidays. His evasive and at times self-contradictory testimony on this subject convinces me that his discussions with Arrington were longer and involved much more than he admitted at the hearing. The trier of the fact is therefore entitled to draw all reasonable inferences as to what they actually discussed from the admissions Emerson made on the record. Thus, he admitted that Arrington pointed out the provisions of the trade rules for his "guidance," and that Kellogg recognized the various trade rules as the "practice set-up in the area," and in general "as the terms that the craft will work according to." From these admissions it is a reasonable infer- ence, and I therefore find, that Arrington, in pointing out the trade rules to him for his guidance, indicated that they were the working rules and conditions set up in the Tulsa area under which union carpenters and millwrights would work. In like manner, his admission that he discussed "certain classes of men, mainly carpenters," while knowing he would also use millwrights, over whom the Carpenters claimed jurisdiction, warrants the inference, and I also find, that he discussed with Arrington the availability and qualifications of both carpenters and millwrights Arrington was not called as a witness by any of the Respond- ents, although there was no indication that he was not available to testify. The Trial Examiner is therefore entitled to infer from his absence that, if called, he could not truthfully deny Emerson's testimony as to their conversations. 31R. G Arrington is listed as the last member of the bylaws Committee of Local No. 943 in the 1948 bylaws and trade rules of that local (General Counsels Exhibit No 6). William D Scott, financial secretary of that local in 1949, occupied the same position on the similar committee listed at the end of the 1949 edition of the bylaws and trade rules (General Counsel's Exhibit No. 4). 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bylaws and trade rules of Respondent Local No. 943 in effect during 194S contain, among other things, the following provisions : Section 14. No member will work under any non-union foreman. Any member violating this section shall be subject to a fine of $5.00 for each day worked. Section 28. (a) The senior member of any job shall report at once the starting of the job to the Business Agent or Financial Secretary and shall act as Steward until a successor is elected by the members on the job. The Steward shall not be discharged except for insubordination, incompetency, or when the work is completed, which cause must be proven to the satisfaction of the Executive Committee. If they deem it necessary they shall make a change and report same to the next regular meeting. The Steward shall work when there is any work, and when necessary to work overtime he shall be one of the men that works, if he so desires. He shall appoint a successor pro tem. when he leaves the job. Penalty for not complying with this section shall be $5.00. (Section 28 in 1949 edition.) Section 28. (b) The Steward on the job shall look after the interests of the Local Union and report conditions each meeting night on the Steward's report blanks furnished by the Local Union. He shall examine all cards on his job or in the shop, to ascertain if punched for the month in which working, and if any man be without a working card he shall have five hours in which to secure one. The Steward shall report the names and addresses of all members in their own handwriting on report blanks, and shall report all men working on permit, stating whether jurisdictional, applicational or clearance card. (Section 28 (a) in 1949 edition.) Section 28. (e) The Steward shall report any violation of the By-Laws or Trade Rules on the job, and any Steward in any way failing to comply with the By-Laws and Trade Rules shall be fined $5.00 for each offense. ( Section 28 (d) in 1949 edition.) Section 38. No member shall be allowed to work on a job where a non-union carpenter is employed. For violation of this section they shall be fined $10.00 per day for each day worked. - Section 44. (a) All foremen must be members of the Local Union and must have card punched for the month in which working. This section also applies to superintendents who are members of the United Brotherhood., Section 50. (g) "The members of the United Brotherhood of Carpenters and Joiners of America, will not use, erect or install any materials that are not handled by members of the United Brotherhood of Carpenters, or under the supervision of a member of our Brotherhood after it was delivered to the job site" (Section 51 (g) in 1949 edition.) Identical provisions appear in the bylaws and trade Rules in effect during 1949, but with several changes of section numbers as indicated above. The 1949 edi- tion, effective January 1, 1949, also contained a revised section 49, entitled "Mill- wrights and Machinery Erectors," subdivisions (j) and (k) of which provided : Section 49. (j) On all jobs where one man or more are equipped on millwright work, a practical millwright shall be steward. Section 49. (k) On jobs where two or more millwrights are employed must be in charge of a millwright foreman who is a member of the U. B The evidence does not disclose whether Emerson saw or read these provisions during 1949, but the record otherwise establishes, as will appear below, that Kel- logg, through other supervisory employees, knew of and complied with all of the above provisions in hiring millwrights from and after July 19, 1949. THE M. W. KELLOGG COMPANY 551 Kellogg began to hire millwrights at the West Tulsa project on October 8, 1948, when Emerson hired Gillen as millwright superintendent . Gillen had been a member of the Carpenters since 1943 when he first began to work for Kellogg, and he was an active member of that union, attending several meetings of Local No. 943, while he worked at West Tulsa. Gillen was given sole authority by Kellogg to hire and fire millwrights on the job, subject only to the approval of Emerson and Handler as to the need for the number he desired at any time. The record indicates that Gillen hired millwrights in two separate construction periods which were separated by a pipe fitters' strike. The first period covered October 8, 1948, to April 1949; the hiatus in construction due to the strike ran from April 1949 to July 18, 1949; the second hiring period covered July 18, 1949, to March 1 , 1950 34 When Gillen was ready to use millwrights , he hired his initial group of 13 men from only 3 sources : 4 were former Kellogg employees who had worked for him on other jobs and who'contacted him personally at this project ; 38 2 men, J. W. Newman and Ira V. Powell, were already employed on the job site ( Newman by another contractor, Powell as a carpenter by Kellogg ) and applied for work directly to Gillen within the refinery area ; and the remaining 7 millwrights, except Russell , were recommended by Newman and other millwrights already on the job ; Russell was hired from another Kellogg refinery construction project nearby which was being completed , at the request of the Kellogg manager on that job 35 The last of this group was hired January 31 , 1949. All of them were mem- bers of the Carpenters. A strike of the pipe fitters employed on the project closed down all construction work between some date in April 1949 and July 18, 1949. After the strike started Gillen worked the millwrights on hand for about 3 weeks to complete all mill- wright work which they could perform based on the amount of precedent work completed by other crafts. Gillen laid off his millwrights gradually as they completed the available millwright work, until he was the only one left. The strike ended in the week before July 17, 1949. Kellogg started on Monday, July 18, to recall employees in order to resume operations . On July 19, the second day of rehiring, Gillen began rehiring millwrights . On that day he recalled Boatright and made him millwright foreman . On the 20th he rehired the brothers , P. H. and S. S. Burgess , Jr. Gillen tried to rehire other former mill- wright employees but was unsuccessful in securing the return of 11 of them 83 He then hired 10 new men between July 22, 1949, and December 16, 1949. All 34 The above findings are based on the credited testimony of Emerson , Handler, and Gillen , and General Counsel 's Exhibits Nos 4 , 5, and 6 The hirings in each period are considered separately for purposes of comparison only, inasmuch as the complaint in Case No 16-CA-182 charges Kellogg with violations of the Act in its hiring practices only from and after July 19, 1949 31 This group comprises men hired at various times in the first period above -mentioned. There is no mention of Lloyd Thomas Wood in the record other than the dates of his original and second hiring and respective layoffs , and the admitted fact that all mill- wrights hired were members of the Carpenters 31 P H Burgess , S S Burgess , Jr, Ishmuel Burgess, and Lloyd Parker "The Midcontinent Petroleum refinery job at West Tulsa Moore, Boatright, S C Burgess, Sr, Fred S Newman , and Lind had also worked on that job before coming to the Texaco project. 33 The recapitulation ( General Counsel's Exhibit No 5) indicates that Ira V Powell and Lloyd Thomas Wood were not rehired until March 1, 1950 , near the end of the job "He hired two more, Schulz and Friloux , who did not work as millwrights on the Kellogg project, but were retained by The Texas Company from the Foster -Wheeler con- struction project in the refinery for the purpose of observing and checking the operation of the machinery installed by that contractor : they were carried on the Kellogg payroll by special arrangement with The Texas Company 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these men were likewise members of the Carpenters. Lauer and St. Clair were recommended by millwrights already on the job; Whitcraft and Kolb were sent out from Carpenters' hall and hired on the recommendation of Scott of Local No. 943; Walsh and Worley were already working as carpenters on the job and were transferred by Gillen to millwright work; Stuart was hired on his own application to Gillen within the refinery area, where he had been working for Grimshaw, another contractor ; Baker and Swafford were hired on the recom- mendation of the millwright foreman at the Foster-Wheeler project within the refinery area, where they had been working ; and Frazier , a former Kellogg em- ployee, was hired after direct application to Gillen and on recommendation of Emerson under whom he had worked on a foreign Kellogg project. The above findings are based on the stipulated recapitulation of millwright employment records ( General Counsel's Exhibit No. 5) and the credited testimony of Emer- son and Gillen. With regard to Kellogg's general practice in hiring millwrights, Emerson, Gillen, and Curlee testified in substance that Kellogg hired these craftsmen throughout the project on the basis of their qualifications alone and\vithout regard to their membership or nonmembership in any union, and that clearance through a union was not required as a condition precedent to employment as a millwright. In support of this position, Gillen also testified that he found it unnecessary to recruit or procure millwrights by the ordinary personnel hiring practices or through resort to any union, because he had from the outset a list of names and addresses of millwrights who 'had worked for him before, others were referred to him from other Kellogg projects being completed as the' West Tulsa job got underway, still others wrote or called him directly for jobs, and many were recommended by his foreman and other millwrights on the job. On the basis of this testimony, Kellogg argues that there was no necessity for hiring millwrights solely through any union, and that consequently there was never any requirement that millwrights must secure referral or clearance cards from ,the Carpenters as a condition of employment. However, analysis of the hirings before and after July 19, 1949, coupled with other facts established by the record, indicates that Kellogg's practice in hiring millwrights was significantly more restrictive than Kellogg now contends. In the preceding section I have adverted to credited testimony of Curlee and Gillen indicating that the normal hiring practices and facilities of Kellogg were not used for the procurement of millwrights. On this point Gillen testified credibly that he never referred to or used any file of millwright applications on hand, nor used the normal facilities of the personnel office to recruit workers in that craft ; instead, he procured his men initially from the three sources mentioned in the preceding paragraph ; in hiring additional men, he always consulted his foreman and then procured men on the recommendations of the foreman and other millwrights on the job, all of whom were members of the Carpenters It is clear from the above testimony at the outset, and I find, that the usual hiring practices and sources were not used by Kellogg in the procurement of millwrights, but that the selection and hiring of those craftsmen was delegated to and handled exclusively by Gillen, a member of the Carpenters, throughout the project Although the analysis of hirings in the first hiring period (before the strike) supports Gillen's story that he secured millwrights from the three sources men- tioned above, the analysis of hirings in the second period (after July 18, 1949) set forth above indicates that the new men hired came, with one exception (Frazier), from union members already at work on the project (.six men), by recommendations of union men on the project (two men), and by direct referrals from the Carpenters' hall (two men). None of these men came from Gillen's own THE M. W. KELLOGG COMPANY 553 list of former employees ; and all of them were lured by him, on his own admis- sion, only after consultation with his union foreman, Boatright. It is clear from these facts, in contrast with the hirings before July 19, that the hirings after that date were through a single restricted channel, i. e., from and through members of the Carpenters. The hiring pattern after July 19 also discloses that Gillen in fact complied with the pertinent bylaws and trade rules of Local No. 943 quoted above. He hired a union foreman, Boatright, at the outset on July 19.10 Thus, he and his foreman conformed to Section 14, 44 (a), and 49 (k) of the 1949 bylaws quoted above which required hiring of union millwright foremen and, superintendents. When Gillen rehired the Burgess brothers as the first nonsuperviory millwrights on the job, one of them, S. S Burgess, Jr., at once became the millwright union steward for the job, and was known and recognized by Gillen as such ; ^ the brothers had equal seniority on the project, having been hired together on November 15, 1948, before the strike ; Gillen said Burgess, Jr , was appointed steward by the millwrights on the job, who at that time consisted of Boatright, the foreman, Burgess, Jr , himself, and his brother ; Burgess, Jr., continued as union steward on the job until his layoff on March 31, 1950, with all remaining nonsupervisory millwrights. Section 28 of the 1949 bylaws provided that the senior craftsman on the job should act as steward until his successor was elected by the men on the job or the executive committee of the union. The record dis- closes no later action by either the working millwrights or the union as to ap- pointment of another steward. Finally, Scott, the Carpenters' representative, testified credibly that all millwrights on the Kellogg job were members of his Local No. 943. Gillen and Curlee both admited they knew this to be the fact. These facts clearly indicate that the millwright work on the project was in fact being operated as a closed shop, so far as compliance' with the Carpenters' bylaws and trade rules was concerned. In this connection, it should be noted that counsel for the Carpenters stipulated at the hearing that "every union job has a steward " Emerson also considered the millwright work on the project a "union job"; when he was questioned about hiring machinists for millwright work on similar projects in the past, he admitted that Kellogg had done so on one project in 1939 or 1940, but he justified and differentiated the hiring of machinists there by calling it "non-union work"-the obvious inference is that he classed the West Tulsa project as a "union" job. It is not surprising that the millwright work was operated in accordance with the rules of the Carpenters and that the millwrights were all union members, when one considers the basic fact that the hiring and supervision of millwrights was centered entirely in Gillen. As an active member of Respondent United Brotherhood since 1943, and also active in its Local No 943 while at West Tulsa, Gillen must be presumed to have had full knowledge of the bylaws and trade rules of Local No. 943 quoted above and of the provisions of the constitution of the United Brotherhood. The same presumption applies to his foreman, Boat- right.' Section 42U of the constitution and general laws of the United Brother- "The record does not disclose the name of the millwright foreman, if any, on the job prior to that date. 41I do not credit the testimony of Gillen, a brother union member , that Kellogg did not "respect" Burgess' appointment as union steward 42 Members of a trade union are presumed to know what the laws of its existence declare too binding upon them, and are generally charged with knowledge of the laws and regu- lations of their union. 63 C J. Title "Trades Unions," section 11, p 662 ; Long vs. B & 0 R Co , 141 Atl Rep. 504, 155 Md 265 ; International Brotherhood of Boilermakers, etc vs Wood, 162 Va 517, 175 S E 45, Interborough Rapid Transit Co vs Lavin, 247 N Y 65, 159 N E 863, 63 A. L. R. 188; O'Connell v Leary, 167 Misc , 324, 3 N Y S. 2d 823. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood required any member who becomes a foreman to comply with the union rules and hire "none but members of the United Brotherhood." Section 43K thereof prohibited any member from violating the trade rules of the locality in which he works ; section 43N made violation of that rule punishable with a fine or expulsion, or both ; and section 55C gave local unions power to impose these penalties for violation of local rules and other misdemeanors. Under these sections, Gillen knew that he would have to comply with all the bylaws and trade rules of Local No. 943 when he took over the West Tulsa job; and the rules of that local and the Brotherhood quoted above, make it clear that he had to hire all union men, not only to avoid violation of the rules and consequent penalty to himself, but also to get the work done without interruption. Indeed, section 50 (g) of the 1948 local rules (section 51 (g) in the 1949 Rules) was plain notice and warning to him that if he permitted any nonunion millwrights to erect machinery on the job, the union millwrights would refuse to handle any of the installation. It was therefore inevitable that, when he was hired as superintendent and given carte blanche in the hiring of millwrights, he would comply with the constitution and bylaws of the United Brotherhood and the bylaws and trade rules of its local in Tulsa, as he in fact did 43 Another factor militating against Kellogg's contention is the contrasting treat- ment which Gillen accorded Sims of the IAM and Scott of the Carpenters, when each endeavored to place members of his union on the job. Gillen testified that while he was in the personnel office at the project on July 19, he spoke to Sims of the IAM on the telephone. Sims identified himself as a representative of the IAM, and asked if he (Gillen) hired the millwrights. When Gillen replied in the affirmative, Sims said he had some men he would like to put to work on the project. Gillen at once replied that at that time he was not in a position to use any new men, as Kellogg wanted to rehire all millwrights who had been working before the strike. Gillen did not state his name or position to Sims, nor ask any questions about the men Sims had mentioned, nor suggest that they be sent out later for interview ; he only told Sims to contact Mr. Emerson or Mr. Smith (not further identified in the record). At this time Gillen knew that he would be using millwrights in the future, and it was natural for him to try to rehire all former millwright employees laid off because of the strike. However, he gave Sims no encouragement whatever about sending men out later for employ- ment ; and when he learned as early as July 22 that he could not get back any of his old millwrights except the two Burgess brothers, and would have to hire new men, be made no attempt to contact Sims, although Sims' call was notice to Gillen that the IAM represented a possible source of new labor supply. It is noteworthy that, although Gillen professed to be available at all times for inter- view to all persons who approached him for jobs, whether personally or by telephone, he did not in this instance offer Sims the slightest encouragement about placement of workers, or even suggest an interview. On the contrary, although he could not be sure that he could rehire all his former millwrights (which shortly turned out to be the fact), he definitely discouraged Sims from making further application. His treatment of Scott, as officer of his own union, was in striking'contrast: when Scott called and said he would like to place a "couple of good men," Gillen at once told him to send them out, and he hired them (Whitcraft and Kolb), although he was dubious about their qualifications and shortly discovered they were unqualified for the job His prompt and un- 43 In view of Emerson's and Gillen 's knowledge and recognition of the local rules of the Carpenters, and Gillen's compliance with them in hiring of millwrights, both the 1948 and 1949 edition of those rules were clearly evidential against Kellogg in determining the scope and nature of its practices in hiring millwrights. The motion of Kellogg to strike the 1948 edition of the rules from the record is therefore denied. THE M. W. KELLOGG COMPANY 555 questioning acceptance of Scott's offer of these men warrants the conclusion that their referral by the Carpenters was the primary consideration in hiring them ; their qualifications were not considered seriously at all. His abrupt and final discouragement of Sims of the IAM, in contrast , further strengthens this con- clusion, which is also consistent with the findings above that Kellogg had given orders to the Texaco guards that resulted in admission only of millwrights from the Carpenters to the project and rejection of millwrights not members of that union. Furthermore, although Gillen claimed that he had no work for machinists, as such, at the project, and that he would not have hired machinists unless they had experience in refinery construction , the record clearly indicates that, in hiring his millwrights after July 19 he did not adhere to that standard, or engage men on the basis of their qualifications . Thus, he hired Walsh, Worley, and Powell, all carpenters, although none of them appeared to have had re- finery millwright experience ; he took on Powell without any knowledge of his milliwright experience, acting merely on Powell 's own representation and the recommendations of other men on the job. He hired Whitcraft and Kolb as found above, on the mere statement of Scott that he "had a couple of good men"; al- though he was a "little bit afraid of them," he took them notwithstanding, yet was compelled to fire them a month later for poor work, after concluding that their work was equivalent only to that of a 2 -year apprentice millwright. He tc,ok on E. D. Stuart, formerly employed by another contractor within the re- finery, merely on his own statement of his qualifications, which are not detailed in the record. He also lured Lauer, St. Clair, and Frazier on the recommenda- tions of other men on the job, and Baker and Swafford on the recommendations of the millwright foreman of another contractor in the refinery . Although it appears that Lauer, St. Clair, Frazier , Baker, and Swafford had previous re- finery millwright experience, the significant aspect of their employment is that they were engaged on the recommendation of other men at the project. It is clear from the above that the qualifications and experience of the new millwrights varied widely . But the outstanding fact and common denominator as to all of them is that they were members of the Carpenters and were all cleared by Gillen and Boatright, members of that union , before being hired: These cir- cumstances further persuade me that Gillen hired his men on the basis of their membership in the Carpenters, and not on their qualifications. There are several other circumstances which tend to indicate that Kellogg's practice in hiring millwrights was discriminatory . The record shows that Kel- logg received the first amended charge in Case No. 16-CA-182 on August 6, 1949, when Curlee signed a registered mail receipt for it. Both Emerson and Curlee testified that after July 19, 1949 , and specifically in August 1949, Kellogg changed or "broadened" its hiring practices . Curlee said the change involved the sending of written authority to individuals to report for interview or work, so that they could get past the guards for interview ; at the same time Kellogg made it plain to The Texas Company that persons seeking employment with Kellogg would have to talk to its personnel and not to any of the Texaco guards. Curlee called this "an intensification of our procedure " and a "natural defensive action on the part of the Company," so that it would not be in effect charged with the actions or statements of the guards, and to make sure that applicants could get into the refinery to talk.to Kellogg personnel without difficulty. Cer- tain aspects of this change of procedure are significant. In the first place, if Kellogg had been interviewing and hiring millwrights without discrimina- tion before and after July 19, as it now contends , no change in its hiring pro- cedure would have been necessary ; the decision to make the change leaves the 556 DEIC1STONSS OF NATIONAL LABOR RELATIONS BOARD impression that it was trying to disguise an illegal practice . Furthermore, in hiring millwrights after July 19 it implemented the "change " by sending tele- graphic orders to report to work to the last five millwrights employed, Frazier, Baker, Swafford, Schulz, and Friloux, who were hired between November 7, 1949, and December 16, 1949. As found above,' the latter four did not need telegrams to gain admission to the refinery, as they were already employed there on other work and presumably had access to the project by use of badges or their union cards ; and Frazier, too, could have used his union card to get in, like Whitcraft and Kolb. The inference is warranted that the telegrams were sent to create an ostensible written authority for their admission for mill- wright work, other than their union cards, which would tend to overcome any appearance of continuance of a discriminatory practice . Whatever the purpose of the above "changes" in procedure, however, they did not alter the salient facts that all millwrights who worked on the job after July 19, 1949, and to the very end, were members of the Carpenters, and were taken on only after clearance by Gillen and his foreman , both members of the Carpenters , and that no millwrights not members of that union were hired-in short , a closed sbnn prevailed among the millwrights to the end of the project. Upon the credited testimony of Scott of Local No. 943, and the admission in the answer of Kellogg , I find that neither of Respondents Carpenters have been certified by the Board as a collective bargaining agent pursuant to Section 9 (e) of the Act for any employees at the West Tulsa project of Kellogg , nor have they been certified under the proviso to Section 8 (a) (3) of the Act as author- ized to make an agreement with Kellogg requiring membership in the Carpenters as a condition of employment at that project. Concluding Findings After careful consideration of all of the above facts and circumstances, their relation to each other, and the order of events as related above, 5 I am convinced that Kellogg embarked at the outset of the West Tulsa project upon a method of hiring millwrights which inevitably resulted in a closed shop in that craft. In the beginning , Emerson, the top Kellogg supervisor, became familiar with the Carpenters' local bylaws and trade rules, which were pointed out to him by a Carpenters' representative, and he thereafter recognized them as the work- ing conditions under which members of that union would work on the project. Kellogg made compliance with those rules and regulations a foregone conclu- sion by hiring a union member, Gillen, as millwright superintendent, and giving him carte blanche in his choice of millwrights. Gillen followed those rules, at least after July 19, 1949, by hiring a union foreman and thereafter taking on only members of the Carpenters as millwrights, after consultation with his foreman ; 95 and there was a union steward on the job from J'uly 20, 1949, to the end of the millwright portion of the project. In order to carry out this hiring practice and insure a closed-shop condition, Kellogg gave orders to The 44 See footnote 29 above. 45 Much of the evidence discussed above was elicited by General Counsel from supervisory employees of Kellogg in the form of admissions which constitute circumstantial proof of the Kellogg hiring practices . It has long been held that the Board , like other judicial and quasi-judicial bodies , is not required to deny relief because of the absence of direct evidence , but is justified in relying on circumstantial evidence . Jasper National Mattress Company, 89 NLRB 75; N, L. R B v Link-Belt Co., 311 U. S 584, 602. 4o In the light of the substantial evidence outlined above, I reject Kellogg 's claim that the 100 percent union membership among the millwrights was a mere "happenstance" or coincidence over which Kellogg had no control. THE M. W. KELLOGG COMPANY 557 Texas Company guards to admit only millwrights who presented working cards or permits from the Carpenters' local, which orders the guards carried out; as a corollary, the guards were instructed not to admit any applicant for mill- wright work unless he presented such card; in accordance with this instruction, the IAM members who applied for work at the gates were denied admission on July 19 and 27 for interviews. When they tried to satisfy the condition im- posed by Kellogg as a prerequisite to interview and employment, by applying to the Carpenters' hall for work permits, Scott confirmed the discriminatory practice in vogue at the project by stating they could not get work there with- out a card from his union, and then he denied them that card and refused to accept their applications to join his union. Prentice, a Kellogg personnel man, also confirmed this practice in his talk with Sims on the telephone on the 19th; and Gillen himself maintained the practice by discouraging Sims on the same day from further application for employment by or on behalf of his IAM mem- bers. Kellogg maintained the closed shop among the millwrights throughout the project without the sanction of a union-security agreement with the Car- penters under the provisions of Section 8 (a) (3) of the Act .47 On the basis of all of the above facts, circumstances, and considerations, I have come to the conclusion, and I therefore find, that Kellogg refused to inter- view, consider for employment, and to hire and employ Orville E. Wolf, G. H. Woollard, C. O. Woollard, E. H. Foster," Robert C. Delone, and Snowden A. Davidson on July 19, 1949, and G. N. Gardner on July 27, 1949, because each of said applicants for employment was not a member of Respondents Carpenters and did not present referral or working cards from Respondent Local No. 943, and that, by requiring of such applicants as a condition to consideration for employment and actual employment the presentation of such cards from Re- spondent Local No. 943, Kellogg did discriminate against said applicants in regard to their hire and the terms and conditions of their employment, in order to encourage membership in Respondents Carpenters and discourage member- ship in the IAM and that by such discrimination Kellogg has violated Section 8 (a) (3) of the Act.49 In addition, such discrimination amounts to an inter- ference with, restraint and coercion of employees and applicants for employment in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. E. The 8 (b) (2) charge The complaint against the Carpenters alleges in substance that those Respond- ents, through their officers and agents, since July 1949 caused or attempted to 471n reaching the above findings and conclusions, I have considered the voluminous testimony by Kellogg supervisory personnel detailing the general hiring practices and procedures of Kellogg, and their repeated denials of any conduct which would Indicate discriminatory practices. To the extent that their testimony as to general practices is inconsistent with my findings as to the practice in hiring millwrights, it is considered immaterial on the issue here. To the extent that their other testimony conflicts with the findings and conclusions reached herein, such testimony is not credited. 48 Since the allegations of the complaint in Case No. 16-CA-182 are confined to events occurring on and after July 19, 1949, and in view of my findings of discriminatory prac- tices after that date, I deem it unnecessary to make any specific finding on the basis of Foster's testimony as to his rejection at the project gates on an unspecified date earlier in July. 49 It is well settled that the prohibition against discrimination because of membership or nonmembership In a labor organization, contained in Section 8 (a) (3) of the Act, applies to applicants for employment as well as to persons already employed. Phelps- Dodge Corporation v N. L. R B, 313 U. S. 177; National Maritime Union of America, 78 NLRB 971, enfd. 175 F. 2d 686, cert. denied. 338 U. S. 954. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause Kellogg to discriminate against its employees and/or job applicants in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 ( b) (2) of the Act, by four specific acts or categories of conduct : 1. Entering into an "agreement or arrangement" with Kellogg which required Kellogg to employ for millwright work only members of the Carpenters who had union referral cards from Respondent Local No. 943.50 2. Threatening Kellogg, by its local bylaws and trade rules and otherwise, with work stoppages if nonunion "carpenters" should be employed by it." 3. Causing Kellogg to require its millwrights or applicants for such work to become members of the Carpenters. 4. Causing Kellogg to refuse employment to the seven IAM members named above because of nonmembership in the Carpenters. 5. Causing Kellogg to refuse employment to all applicants for millwright work who were not members of that union. The first two paragraphs above state the types of conduct charged to the Car- penters ; the last three paragraphs state the effect of that conduct on Kellogg. In essence the claim of General Counsel is that the Carpenters caused or attempted to cause Kellogg to take the discriminatory action found above (1) by promulgating and distributing to Kellogg a set of conditions, consisting of certain bylaws and trade rules of Local No. 943, under which millwright members of the Carpenters' would work on the project, which conditions Kellogg recognized, accepted, and followed in setting up the illegal closed-shop hiring practice, and (2) by publica- tion and distribution to Kellogg of those rules, as a direct threat to Kellogg that it must hire only millwrights from the Carpenters or suffer the consequences of a work stoppage by having the union millwrights walk off the job, which threat caused Kellogg to create and follow the closed-shop hiring practice. The pertinent provisions of the bylaws and trade rules of Local No. 943 in effect during 1948 and 1949 have been quoted in full at page 550. From the statements as to their adoption and approval contained at the end of the 1948 and 1949 editions, and the testimony of Scott thereon, I find that the 1948 bylaws and trade rules were adopted by the local February 3, 1948, and approved by the first general vice president of the United Brotherhood March 25, 1948, and that the 1949 edition was adopted by the local January 18, 1949, and approved by the same officer of the United Brotherhood March 23, 1949. The approval by the United Brotherhood was required by section 25A of the constitution of the Brotherhood " which, with section 6C, grants local unions the right to make bylaws and trade rules to govern their members and members of the United Brotherhood working in their respective jurisdictions, but requires that such laws and rules shall not conflict with the constitution and laws of the parent body, and that they must be approved by the first general vice president of the Brotherhood before becoming law within the local union. Sections 43K and 43N of the constitution in effect 60 In his brief, General Counsel does not appear to rely specifically on an "agreement or arrangement," but claims the Carpenters violated Section 8 (b) (2) by "promulgating, publishing and distributing By-Laws and Trade Rules which set up an illegal hiring practice." However, his argument intimates that some working arrangement was reached between Kellogg and the Carpenters under which Kellogg adopted those laws and rules as the basis of its hiring practices on the project. ai At one point , General Counsel relies on rule 38 of Local No. 943, which prohibits Carpenters ' members from working with honunion "carpenters ," claiming it evidences a threat directed to hiring of nonunion men for "carpenter and millwright" work. Through- out the hearing the only issues litigated involved the Kellogg practices in hiring of millwrights and treatment of applicants for millwright work while rule 38 does not, appear to be directly applicable to the issue, there are other rules in the bylaws, applying to all members of the Carpenters and also to employers , which will be considered below. 01 General Counsel's Exhibit No. 3. THE M. W. KELLOGG COMPANY 559 require each member of the Brotherhood to abide by the trade rules of the locality in which he works, under penalty of fine or expulsion or both. The above provi- sions and the adoption and approval of the local bylaws and trade rules in ques- tion thereunder, clearly indicate, and I find, contrary to the contention of the Brotherhood, that the bylaws and trade rules of Local No 943 for 1948 and 1949 became the laws and rules of the United Brotherhood in effect in the Tulsa area and were binding upon that parent body and all of its members to the same extent as its local union, and in consequence any general policy or rule of action ex- pressed in those laws and rules likewise became that of the Brotherhood. Scott, of Local No. 943, testified credibly, and I find, that he distributed copies of the local bylaws and trade rules to anyone who asked for them, including members of his own union, other unions and employers. He could not recall giving a copy to any representative of Kellogg, but the record shows, as found above, that a copy of the 1948 rules was left at or mailed to Kellogg at the West Tulsa project some time before June 1948. I have also found that in that month or shortly thereafter Emerson, the Kellogg resident manager, read the rules and discussed them with Arrington, representative of Local No. 943, who pointed out to him the 1948 laws and rules as constituting the conditions under which members of the Carpenters would work at the Kellogg project. There is no proof in the record of any later discussions or negotiations be- tween any officers of Kellogg and representatives of the Carpenters on the subject of the working conditions for millwrights on the project. I have further found that, following the discussions between Emerson and Arrington, Kellogg actually recognized and followed the local's bylaws and trade rules, both in manning the project only with union millwrights, from the superintendent down, thus maintaining a closed shop from about October 1948, and particularly from July 19, 1949, to the end of the job, and also in arranging for and causing the rejection for interview and employment of qualified appli- cants for millwright work who were not members of the Carpenters, all in violation of the Act. The closed shop among the millwrights was created and maintained by Gillen, the union superintendent, who was fully conversant with, and hired his men according to, the requirements, prohibitions, and policies expressed in the local bylaws and trade rules. Finally, Scott was cognizant of the existence of the closed shop on the job, as evidenced by his statements to the IAM job applicants who unsuccessfully sought working cards from his local after they had been denied admission to the project for interview because they lacked such cards. The record discloses no formal written agreement between Kellogg and the Carpenters covering millwright working conditions on the project. However, the action of Arrington in pointing out the trade rules to Emerson under the circumstances related by the latter was in a sense a proposal or demand by the Carpenters stating the working conditions under which millwright members of that union would work on the project. While there is no evidence of a written or verbal answer by Emerson or any other Kellogg officer to this proposal, Kellogg's actions in response to the proposition speak louder than words. Emer- son's recognition of the local trade rules, his hiring of a union superintendent, who in turn hired all union millwrights and, after July 19, 1949, at least, a union foreman, the existence of a union millwright steward on the job after July 19, 1949, coupled with the discriminatory rejection on and after that date of applicants for millwright work who were not members of the Carpenters, and the contemporaneous discouragement of their spokesman by Kellogg officers from further applications on their behalf, all together constitute conduct which to my mind demonstrates at least an acquiescence by Kellogg in the working 560 DECISIONS 0F NATIONAL LABOR RELATIONS BOARD conditions demanded by the Carpenters. These actions of the parties do not reach the dignity of a contract in the usual sense, nor does the record indicate negotiations between them looking to the execution of a formal contract 44 Nevertheless, the combination and sequence of events outlined above suggest the creation of a working arrangement between the parties, delineated in its broad outlines by the local laws and policies of the Carpenters, under which Kellogg hired as millwrights at West Tulsa only members of the Carpenters, rejected applicants for millwright work who were not members of that union, and thus maintained a closed-shop condition on the project. It is clear from the record that the Carpenters initiated this arrangement when Arrington brought to the attention of Emerson the position and policy of the Carpenters as to the mandatory working conditions for its millwright mem- bers contained in the local bylaws and trade rules. There is no direct testimony from any Respondent as to whether Kellogg acquiesced in and carried out the arrangement willingly or unwillingly. Emerson's admission that he recognized and followed the local trade rules as the "practice setup in the area," and Kel- logg's compliance with them during the construction, are indications that Kel- logg may have acted voluntarily in setting up the closed shop under the above arrangement. However, the very nature of the bylaws and trade rules pointed out to Emerson, which were of course well known to Gillen, the millwright superintendent, when he was hired, and his compliance with those rules, espe- cially after July 19, 1949, leads me to the conclusion that they were a clear and continuing attempt by the Carpenters to compel Kellogg to maintain a closed shop on the project, and that the attempt succeeded. Section 50 (g) of the 1948 bylaws and trade rules states : Section 50. (g) "The members of the United Brotherhood of Carpenters and Joiners of America, will not use, erect or install any materials that are not handled by members of the United Brotherhood of Carpenters, or under the supervision of a member of our Brotherhood after it is delivered to the job site." Section 51 (g) of the 1949 edition is identical. This single sentence was a posi- tive declaration in plain terms by the members of the Carpenters to Kellogg that they would refuse to handle any material on the project which was not handled, or its handling not supervised, by a member of their union. Stated affirmatively, they in effect anounced to Kellogg that they would work on the installation of material only if that installation, and its supervision, was handled by members of their union. The use of the words ". . . will not use, erect or install mate- rials . . ." followed by the remainder of the sentence, expresses a fixed deter- mination not to handle materials on the job under a condition other than a closed shop. The short statement is couched in simple terms conveying a promise or assurance of positive action if the prescribed condition is not main- tained. It derives a compelling and coercive force from the very simplicity and brevity of its wording. There is nothing wishful or suggestive about the rule; it is not a statement of a mere objective or goal which the Carpenters would like to achieve; nor is its inherent force and effect softened or diluted, so far as the record discloses, by any explanatory remarks of the Carpenters' representative which might have reduced it to the level of a mere hope, sugges- tion or even request that a closed-shop condition be established, or a form of argument to persuade the employer to maintain that condition. To the contrary, it confronted the employer as an unadulterated threat that the members of the Carpenters would not install materials on this project, i. e, would stop 13 Cf International Longshoremen's and Warehousemen's Union, et al (Waterfront Employers Association of the Pacific Coast ), 90 NLRB 1021. THE M. W. KELLOGG COMPANY 561 such installation, if the installation was not handled and supervised only by their members, or, in the obverse, if a closed shop was not maintained. The requirement of "supervision" of the work by members of the Carpenters was complemented by the admonition of section 14 to the union members that no member "shall work under any non-union foreman" under pain of penalty, by section 44 (a) requiring that "all foremen must be members of the Local Union and -must have card punched for the month in which working," which was also applicable to superintendents who were members of the United Brotherhood, and finally by section 49 (k) of the 1949 rules which specifically requires that jobs employing two or more millwrights "must be in charge of a millwright fore- man who is a member of the United Brotherhood." Insofar as these rules referred to the status of supervisory officials, they were a clear demand on the employer that his millwright supervisory staff must also be members of the Car- penters, as a prerequisite to members of the Carpenters working on the job.'` From the foregoing analysis and other considerations discussed above, I am convinced, and I therefore find, that the quoted bylaws and trade rules of Local No. 943 in effect in 1948 and 1949, as approved by the United Brotherhood, when pointed out to Emerson, presented a clear threat to him at the outset, and a con- tinuing threat to Gillen, his millwright superintendent after the later was hired, that millwright members of the Carpenters would not work on the project unless a closed-shop condition, from the top millwright supervisor down, was created, and would stop work on the job if that condition was not maintained. That the threat was a continuing one and had the desired effect is established by the proven facts that the millwright portion of the project was manned entirely by members of the Carpenters from start to finish, and that from July 19, 1949, to the end Kellogg maintained a closed shop in that craft in full compliance with the Carpenters' local laws and rules, and also rejected applicants for millwright work who were not members of the Carpenters By the above threat to Kellogg, which in effect was a continuing threat to strike for the maintenance of a closed-shop condition on the job, I further con- clude and find that the Carpenters have since July 19, 1949, attempted to cause, and have actually caused, Kellogg to create and maintain an illegal closed-shop condition among its millwrights on the job, and to discriminate against appli- cants for millwright work who were not members of the Carpenters, because of their nonmembership in that labor organization, in violation of Section S (a) (3) of the Act, and that the Carpenters thereby violated Section 8 (b) (2) of the Act, absent a certification from the Board authorizing either of Respondents Carpenters to enter into a "union-shop" agreement with Kellogg under Section 8 (a) (3) of the Act" The record shows-,that Kellogg's illegal discrimination affected only applicants for millwright employ ment ; there is no proof that this practice caused any actual employee to lose his employment From this circumstance the Carpen ters 'argue "No issue has been raised herein under Section 8 (b) (1) (B) of the Act. 65 Cf International Typographical Union (ANPA), 86 NLRB 951 In reaching this conclusion , I have considered the recent rulings of the Board in Denver Building and Construction Trades Council, et al, (Henry Shore ), 90 NLRB 1768, and ILWU, Local No 16, et al., (Juneau Spruce Corporation), 90 NLRB 17.53, in which the Board has held that union conduct which rises no higher than an attempt to "per- suade" an employer to discriminate unlawfully in favor of the union 's members in hiring employees does not violate Section 8 (b) (2). I do not consider those cases applicable here, for the union conduct there involved, aside from the threats of picketing and actual picketing, contained no threats, express or implied, and therefore falls shoit of the clear threat of a positive future work stoppage or strike to maintain a closed-shop condition, which stands out boldly in the single, pointed provision of the Carpenters' local bylaws quoted above. 953841-52-vol 94-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at some length that Section 8 (b) (2) of the Act does not apply, claiming that provision is operative, both by legislative intent and by its wording, only as to actual employees. I consider this argument without merit. The same conten- tions were made by the unions in the National Ma,ritinie Union cases' and re- jected by the Board, which held that the prohibitions of Section 8 (b) (2) applied to cases where a labor organization causes or attempts to cause the employer to accept conditions under which any nonunion employee or job applicant will be the subject of unlawful discrimination. That rule has been affirmed in later cases iT The Carpenters have argued against the admission in evidence and considera- tion of the bylaws and trade rules of Local No. 943, on the grounds that those rules are promulgated and enforced for the government, discipline, and self-pro- tection of its members only, and that they do not place any obligation or have any effect on the employer. The provisions of the local rules referred to above, particularly those prescribing the union status of supervisory officials as a man- datory working condition on a job, when presented to an employer, became a manifest attempt to dictate to him the composition and status of his working force and supervisory staff, and in that respect they were being used for a pur- pose far beyond the usual function of a union's bylaws as a set of internal rules to govern its members To the extent that those rules were used by the Car- penters as a positive statement to Kellogg of the union position or policy as to working conditions for its members, amounting to a threat, in an attempt to cause Kellogg to maintain it closed-shop condition on the job, they are clearly evidential against' the Carpenters on the issue whether that union's application of its policy to Kellogg violated Section S (b) (2) of the Act The Board has a right to examine and consider a legal document to ascertain whether it is being used for an illegal purpose ' My consideration of the local rules of the Car- penters in their impact upon the employer and his operations is not in any sense a holding that the mere existence of the rules in the constitution or bylaws of a labor organization makes that document violative of the Act per se. The validity of those provisions as between members of the union themselves is not involved here. A finding as to the illegal use and effect of those provisions upon persons and entities outside the membership of the union does not necessaril> result in any proscription of the internal rule-making power of the Carpenters, nor does it prevent the operation of such internal rules in their own proper sphere. Nor does consideration of the local bylaws and rules on the issue here run afoul of the proviso in subsection (A) of Section 8 (b) (1) of the Act, since no issue under that Section was raised by the pleadings or litigated at the hearing Under these circumstances, I find it unnecessary to consider the contention of the Carpenters that that proviso in Section 8 (b) (1) (A) should be considered as though part of and applicable to Section 8 (b) (2). IV. THE EFFECT OF, THE UNFAIR LABOR PRACTICES UPON CO MMERCE It is found that the activities of Kellogg and the Carpenters set forth in Sec- tion III, above , occurring in connection with the operations of Kellogg described in Section I, above, have a close, intimate, and substantial relation to trade, " 78 NLRB 971, enfd 175 F 2d 686 (C: A. 2), cert den. 338 U. S. 954 37 International Typographical Union (ANPA), 86 NLRB 951 and cases cited in footnote 5 thereof. 68 See case cited in preceding footnote. and International Typographical Union and Baltimore Typographical Union No 12 ( Graphic Arts League ), 87 NLRB 1215 THE M. W. KELLOGG COMPANY 563 trnflc, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents Kellogg and Carpenters have engaged in unfair labor practices, I will recommend that each of them cease and desist there- from, and that each take certain affirmative- action designed to effectuate the policies of the Act. I have found that the Carpenters caused Kellogg to create an illegal closed- shop condition on its West Tulsa project at least from and after July 19, 1949, to the end of the project, and, in the course of maintaining that condition, to refuse discriminatorily to interview, consider for employment and employ Orville, E Wolf, G. H Woollard, C. O. Woollard, E. H. Foster, Robert C. DeLone, Snow- den A. Davidson, and G. N. Gardner and that such activity constituted a violation of Section 8 (b) (2) of the Act by the Carpenters, and a violation of Section 8 (a) (3) of the Act by Kellogg. The employer must bear the primary responsibility for the overt discriminatory acts against the above job applicants, because only the employer had the power to put them into effect. However, Kellogg would. not have committed these discriminatory acts if it had not been for the threat by the Carpenters found above. Under these circumstances, both Kellogg and the Carpenters are responsible and should be held jointly and severally liable for any loss of pay suffered by the job applicants due to the discrimination against them. The record indicates that the West Tulsa project of Kellogg was completed, so tar as the millwright work was concerned, on March 31, 1950, when the last five nonsupervisory nnllwrights were laid off in a final reduction in force For that reason I will not recommend that Respondent Kellogg offer reinstatement to the above job applicants. However, the record also shows that Kellogg hired nonsupervisory millwrights starting July 20, 1949, and by August 2 had seven working on the job. Of these, three were employed to the completion of the work, two were discharged for cause in September 1949, one quit voluntarily January 6, 1950, and one was laid off on a partial reduction in force on January 13, 1950. In the meantime four other milhw rights were hired, two in August and two in November 1949, three of whom were also kept at work until partial reductions in force occurred on January 13 and 27, 1950; one of those hired in August was fired in November. It thus appears that there would have been sufficient millwright work on the project at least to January 27, 1950, and to a lesser extent to March 31, 1950, for the above job applicants, if they had been hired July 19, 1949, and started work beginning July 20. The record does not indicate Kellogg's formula, if any, for determining priority of retention or layoff of millwrights or other workmen in the event of a reduction in force. I will therefore recommend that Kellogg and the Carpenters jointly and severally be liable for and make each of the job ap- plicants named above whole for any loss of pay he may have suffered by reason of the discrimination against him from the date of the discriminatory refusal to hire him to the date on which his employment would have been terminated in the normal course of the project. It is recommended that the loss of pay for each job applicant be computed on the basis of each separate calendar quarter 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or portion thereof during the period from the date of the discriminatory action to the date his services would have been terminated in the normal course of the project ; the quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October ; loss of pay shall be determined by deducting from a sum equal to that which the job applicant would normally have earned for such quarter or portion thereof, his net earnings ,69 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It is also rec- ommended that Respondent Kellogg be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due so Upon the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The M. W. Kellogg Company, a Delaware corporation, is an employer within the meaning of Section 2 (2) of the Act. . 2. Lodge No. 790, International Association of Machinists, United Brotherhood ,of Carpenters and Joiners of America, AFL, and Local Union No. 943 of the United Brotherhood of Carpenters and Joiners of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire or tenure of employment and the terms or conditions of employment, of the applicants for employment, Orville E. Wolf, G. H. Wollard, C. O. Woollard, E. H. Foster, Robert C. DeLone, Snowden A. Davidson, and G. N Gardner, thereby encouraging membership in United Brotherhood of Carpenters and Joiners of America, AFL, and its Local Union No. 943, and discouraging membership in Lodge No. 790. International Association of Machinists, Respondent Kellogg has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (3) of the Act 4. By such discrimination, thus interfering with, restraining, and coercing its employees and applicants for employment in the exercise of rights guaranteed to them by Section 7 of the Act, Respondent Kellogg has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) • (1) of the Act. 5. By attempting to cause, and causing, Respondent Kellogg, an employer, to discriminate against the above-named applicants for employment in regard to their hire or tenure of employment and any term or condition of their em- ployment, in violation of Section 8 (a) (3) of the Act, Respondents Carpenters have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. 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 in this voluine.1 69 By "net earnings " is meant earnings less expenses , such as for ti ansportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for Respondent Kellogg, which would not have been incurred but for his rejection by Kellogg and the consequent necessity of his seeking employment elsewhere See Crossett Lumber Company, 8 NLRB 440 Monies received for work performed upon Federal, State , county, municipal , or other work-relief projects shall be considered as earnings . See Repvbhe Steel Corporation v N. L. R. B. , 311 U S. 7. co F. W. Woolworth Company, 90 NLRB 289.