Engineers Limited Pipeline Co.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, on the ground that the charging labor organization, Interna- tional Woodworkers of America, CIO, was not in compliance with Section 9 (h) of the Act at the time the complaint issued. ENGINEERS LIMITED PIPELINE COMPANY and WILLIAM G. O'ToOLE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMB- ING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION No. 598, AFL and WILLIAM G. O'TooLE. Cases Nos. 19-CA-347 and 19-CB-127. July 17, 1951 Decision and Order On March 21,1951, Trial Examiner Irving Rogosin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with re- spect to such allegations. Thereafter, the Respondent Company and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent Company, pursuant to leave of 1 he Board, also filed a reply brief, and the Respondent Union filed a "Statement of Counsel for Respondent Union." 1 The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed 3 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications and exceptions noted below. 1 As the record , exceptions , and briefs adequately present the issues and position, of the parties , the Company's request for oral argument is denied. z Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member p.uiel [Members Houston, Murdock , and Styles] 3 Over the Respondents' objections , the Trial Examiner received in evidence, as an admission binding on the Union only, a letter written by the Union's attorney to the field examiner during the course of the latter's investigation of the case , narrating his version of the events preceding the filing of the charges herein . The Trial Examiner, however, did not rely on this document in making his findings In these circumstances, and in view of the fact that we, too, do not base our findings on this document , we consider it unnecessary to determine the admissibility of the letter. For this reason, the Trial Examiner's Action in receiving the letter in evidence is not prejudicial 95 NLRB No. 29. ENGINEERS LIMITED PIPELINE COMPANY 177 We agree with the Trial Examiner that the Respondent Company discriminatorily suspended O'Toole from employment as a pipe fitter from March 14 to April 3, 1950, and again from April 4 to April 15, 1950, because the Respondent Union, seeking preferential employment for its own members, refused to clear O'Toole, a nonmember, and that the Respondent Company thereby violated Section 8 (a) (3) and (1) of the Act. We also agree with the Trial Examiner that the Respond- ent Union, in violation of Section 8 (b) (2) and (1) of the Act, at- Tempted to and did cause. the Respondent Company to engage in this discrimination-against O'Toole. However, unlike the Trial Examiner, we find it unnecessary to decide whether or not the discriminatory treatment accorded to O'Toole was pursuant to a prior illegal agree- ment or understanding between the parties that the Company, with one exception, would hire only members of the Union or those persons whom the Union cleared. Suffice it to say, the Company's "acceptance of the determination of a labor organization as to who shall be permit- ted to work" was- violative of the Act "where, as here, no lawful con- tractual obligatiofn for such action exists." 4 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: 1. The Respondent, Engineers Limited Pipeline Company, its.offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in the Respondent, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the. United States and Canada, Local Union No. 598, AFL, or in any other labor organization of-its employees, by discharging, suspending, or laying off any of its employees, because of their non- membership in, or their failure to obtain clearance from that labor organization, or by discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condi- tion of their employment, except to the extent permitted by Section S (a) (3) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an 4 Member Murdock, considering himself bound by the majority decisions in American Pipe d. Steel Corporation, 93 NLRB 54 , and International Brotherhood of Teamsters, Chauffeunv , Warehousemen ct Helpers of America, Over-the-Road and City Transfer Drivers, Helpers; Dockmen and Warehousemen, Local..•Union No. I1, A. F. L:, 94 NLRB 1494, from which he dissented , joins the other two Dlembers of the panel in this Decision and Order. 178 DECISIONS' OF" NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (b) Post at its principal place of business. and distribute to its.field employees in the manner in which notices to such employees are cus- tomarily distributed, copies of the notice attached hereto as "Appendix A." 5 copies of such notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by the Re- spondent Company's representative, be posted. by the Company im- Iiiediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted, and be otherwise made available to the field employees. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order as to what steps the Respondent Company has taken to comply herewith. II. The Respondent, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 598, AFL, Pasco, Washington, and its officers, representative, agents, successors, and assigns shall: 1. Cease and desist from : (a) Causing or attempting to cause the Respondent, Engineering Limited Pipeline Company, its officers, agents, successors, and assigns, to discharge, suspend, lay off, or in any other manner discriminate against employees because of their nonmembership in, or their failure to obtain clearance from that organization, except as authorized by Section 8 (a) (3) of the Act. (b) Restraining or coercing employees of the Respondent, Eng'i- neering Limited Pipeline Company, its successors or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a), (3) of the Act. s In the event this -Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words : "A Decision and Order" the words : "A Decree of the United States Court of Appeals Enforcing." ENGINEERS LIMITED PIPELINE COMPANY 179 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Pasco, Wash- ington, copies of the notice attached hereto as "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by an official representative of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto as Appendix B, for posting, if the Respondent Company is willing, at the Company's place of busi- ness in San Francisco, California, in places where notices to employees are customarily posted, and for distribution to its field employees. (c) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondent Union has taken to comply herewith. III. The Respondents, Engineers Limited Pipeline Company, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 598, AFL, their officers, representatives, agents, successors, and assigns, shall jointly and severally make whole William G. O'Toole for any loss of pay he may have suffered by reason of the discrimina- tion against him, in the manner prescribed in "The remedy" section of the Intermediate Report. IT Is FURTHER ORDERED that the complaint against the Respondents, be, and it hereby is, dismissed insofar as it alleges that they violated the Act by entering into and enforcing an illegal agreement. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT encourage membership in UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFIT- TING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION No. 598, AFL, or in any other labor organization of our employees, by discharging, suspending or laying off any of our employees, e See footnote 5. . 961974-52-vol. 95-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of their nonmembership in, or their failure to obtain clearance from that labor organization, or by discriminating against them in any other manner in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act.. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL make William G. O'Toole whole for any loss of pay he may have suffered by reason of the discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by to agreement authorized by Section 8 (a) (3) of the Act. ENGINEERS LIMITED PIPELINE COMPANY, Employer. By ----------------------------=---------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION No. 598, AFL, AND TO ALL EMPLOYEES OF ENGINEERS LIMITED PIPELINE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause ENGINEERS LIMITED PIPELINE COMPANY, its officers, agents, successors, or assigns, to discharge, suspend, lay off, or in any other-manner to discrimi- nate against employees because of their nonmembership in, or their failure to obtain clearance from our organization, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of ENGINEERS LIMITED PIPELINE COMP ANY, its successors or assigns, in the exer- cise of the rights gliaraiiteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- ENGINEERS LIMITED PIPELINE COMPANY 181 quiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WF WILL make William G. O'Toole whole for any loss of pay .suffered because of the discrimination against him. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE. UNITED STATES AND CANADA, LOCAL UNION No. 598, AFL, Labor Organization. By -------------------------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This complaint is based upon separate charges, duly consolidated for the purpose of hearing, filed on July 21, 1950, by William G. O'Toole, an individual, against Pacific Pipeline & Engineers, Limited, now known as Engineers Limited Pipeline Company' herein called the Respondent Company or the Company, and United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, Local Union No. 598, AFL, herein called the Respondent Union or the Union? The complaint, issued December 5, 1950, by the General Counsel of the National Labor Relations Board, herein called the General Counsel, and the Board, respectively,3 by the Regional Director for the Nineteenth Region (Seattle, Washington), alleges that the Respondent Company has engaged in and is engaging in unfair labor practices affecting commerce 7vithin the meaning of Section 8 (a) (1) and (3), and that the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the respective charges, order consolidating the cases and notice of hearing thereon were duly served upon the parties. Specifically, the complaint, as amended, alleges in substance that : (1) on or about March 5, 1950, at a time when the Company did not have in its employ a representative complement of employees in the classifications covered by said agreement, the Respondent Company and the Respondent Union entered into a collective bargaining agreement, recognizing the Union as the exclusive representative of all employees of the Company engaged in the installation of a pipeline between the States of Oregon and Wash- 'At the outset of the hearing the complaint and all fornral documents were amended to conform to the change of name as it appears in the caption. 2 The name of the Union has been corrected to conform to its title as It appears in the pamphlet containing its constitution and bylaws, attached as an exhibit to its motion to dismiss. 3 Except as otherwise stated or required by the context , the designation General Counsel hereinafter refers to his representative at the hearing. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ington as a part of a construction project for the Salt Lake Pipeline Company ; (2) the said agreement provided, inter alia, that "regular resident local journeymen members, capable of performing the work required, [should] .be given preference on each job in the area covered by the terms of this agreement", and that, the Respondent Company should "request assignment of workmen" from the said Union ; (3) pursuant to, and in. giving effect to, said agreement, the parties have, at all times material herein, required applicants for employment in the installation of pipelines to become members of the Union ; (4) on or about March 15, 1950, pursuant to a previous request by the Respondent Union, the Respondent Company discharged, and thereafter failed and refused to reinstate William G. O'Toole' because he was not a member of the Respondent Union, thereby encouraging membership in said Union ; (5) by the foregoing conduct, the Respondent Company has discriminated in regard to hire and tenure of employment to encourage membership in a labor organization, in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7, in violation of Section 8 (a) (1) of the Act; and the Respondent Union has attempted to cause and has caused an. employer to discriminate against an employee in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2), and has restrained and coerced employees in the exercise of the rights guaranteed in Section 7, in violation of Section 8 (b) (1) (A) of the Act. In its answer duly filed, the Respondent Company admits the allegations of the complaint regarding the nature and extent of its operations, and the status of the Union as a labor organization, but denies. that its operations have affected commerce, and that it has engaged in any unfair labor practices. The Respondent Union, denying generally the allegations of the complaint with respect to it, admits its status as a labor organization, but also denies that the operations of the Respondent Company have affected commerce within the meaning of the Act. Further answering, the Respondent Union admits that it reached "a verbal agreement" with the Respondent Company, on or about March 6, 1950, "govern- ing the employment" of union members, but denies that it was the exclusive representative of the Respondent Company's employees engaged in the installa- tion of the pipeline involved. Pursuant to notice, a hearing was held at Pasco, Washington, on January 15 and 16, 1951, before Irving Rogosin, the undersigned duly designated Trial Examiner. The General Counsel and the Respondents were represented by their respective counsel. All parties participated in the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence relevant and material to the issues involved. During the course of the hearing, each of the Respondents moved to dismiss the complaint, either for insufficiency of proof or upon other grounds, and renewed said motions before the close of the hearing. The motions were denied. A motion by the General Counsel to conform the pleadings to the proof with respect to formal matters, not affecting the substantive issues., was granted over the objection of the Respondents. All parties availed themselves of the opportunity to argue orally on the record, and were advised of their right to file briefs and proposed findings of fact and conclusions of law. After the close of the hearing, at the request of the parties, the time for filing briefs was extended to February 5, * Erroneously named at one point in the complaint as James G. O'Toole. The name was corrected by amendment during the course of the hearing. ENGINEERS LIMITED PIPELINE COMPANY 183 1951. No proposed findings of fact and conclusions have been filed by any of the parties. A brief was received on behalf of the Respondent Company on February 5, 1951. On February 2, 1951, counsel for the Respondent Union, by telegraphic notice, waived the right to file a brief on behalf of his client. Upon the entire record in these cases, and from his observation of the wit- nesses, the undersigned makes the following : . FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Engineers Limited Pipeline Company, formerly known as Pacific Pipeline & Engineers Limited, a California corporation, referred to herein as the Respondent Company, is engaged in the construction of pipelines in various States of the United States. The value of materials and supplies purchased by the Respondent in connection with its operations exceeds $1,000,000 annually, of which more than 50 percent is transported to the sites of its operations from States other than those in which the operations are conducted. During the year 1950, the Respondent Company was engaged in the construction for the Great Lakes Pipe- line Company of two pipelines for the transmission of petroleum products between Tulsa, Oklahoma, and Kansas City, Kansas, one measuring about 80 miles in length, the other about 200 miles, both links in a pipeline extending from Tulsa, Oklahoma to the Great Lakes. The total cost of the first of these pipelines amounted to approximately $300,000; the total cost of the second, to approxi- mately $3,500,000. A third project, involved in these proceedings, covered the construction for the Salt Lake Pipeline Company of a link, between Pasco, Wash- ington, and Baker, Oregon, in a pipeline for the transmission of petroleum products between Salt Lake City, Utah, and Pasco, Washington. The cost of that portion of the pipeline under construction by the Respondent Company, generally referred to as the Pasco-Baker Project, was approximately $500,000. Pipe and materials used in the construction of this project were furnished by the Salt Lake Pipeline Company, the Respondent Company furnishing the labor, and supplying the equipment, consisting generally of trucks, bulldozers, side booms, caterpillar tractors, trenchers and various other equipment, valued at about $500,000, transported to the site of the project from points outside the States of Washington and Oregon.° It is evident, and the undersigned finds, that industrial strife resulting in interruption or cessation of the Respondent Company's operations at the Pasco- Baker Project would result in burdening or obstructing commerce or the free flow of commerce, by hindering and delaying transmission of petroleum products between the States of Utah and Washington. Furthermore, the record discloses that, during the period in question, without regard to other factors, the Re- spondent Company furnished services valued at greatly in excess of $50,000 per annum, necessary to the operation of an enterprise which functions as an instrumentality and channel of interstate commerce. The undersigned, there- fore, finds, contrary to the denial in the Respondents' answers, that, at all times material herein, the operations of said Respondent Company have affected commerce, and that said Respondent was, and has been engaged in commerce, within the meaning of the Act. The undersigned further finds that the assertion of jurisdiction by the Board will effectuate its Policies.' 5 The findings in this section are based on the undisputed testimony of Harvey J. Montague, field clerk for the Respondent Company, and the admissions in the Company's answer to the jurisdictional allegations of the complaint. o Hollow Tree Lumber Company, 91 NLRB 685; William K. Kimmins at al., 92 NLRB 98; Depew Paving Co., Inc., 92 NLRB 142; Edward Besch et al., 92 NLRB 520. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE RESPONDENT UNION, THE LABOR ORGANIZATION INVOLVED , United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, Local Union No. 598, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Respondent Company. III. THE UNFAIR LABOR PRACTICES A. Introduction' Late in February 1950, the Respondent Company began preparations for con- struction of the Pasco-Baker Project, which included installation of a pipeline under the Snake River at Burbank, near Pasco, Washington. On Sunday, March 5, in response to a telephone call from the business agent of the Operating Engineers Union 8 at Portland, Oregon, Vincent. H. Larish, then acting business manager (later business manager and financial secretary) of the Respondent Union, met with Superintendent It. V. Wilson of the Respondent Company at the union office. Wilson explained the nature of the project, and told Larish that he was not certain when work would begin because of the delay occasioned by the necessity for bringing a dredge by river from Portland. Wilson stated that there was a "restriction on [the job]," meaning, presumably, a date for the completion of the project without penalty, and indicated that the Company was anxious to "get the river crossing in" before the river began to rise. He told Larish that the Company "would like to clear a man in from California." Larish said that that would be "permissible," and asked "what agreement they had, and what they had worked under." When Wilson replied that the Company was working under the "California agreement," Larish told him that the Union "had a statewide agreement-the only one in the United States," covering the State of Washington, but that he would "go along with the California agreement." Larish testified that neither Wilson nor he had in his possession at the time a copy of the "California agreement," but that, although he had not "studied it," he had seen copies of it and "knew what it possibly contained." He further testified that he realized that the type of work which the Company was under- taking here was "more or less a specialized deal," and presumably not covered by the Washington agreement. Wilson agreed, according to Larish, to furnish him with a copy of the "California agreement." When Larish failed to receive it after about a month, he communicated with "some of the Locals in California," including Local 342, at Oakland, California, affiliated with the International, and obtained from them three separate copies of the so-called "California agreement." The record does not indicate whether the substantive provisions of each of these agreements were uniform. Before receiving these copies through his own sources, Larish attempted to ascertain from both L. E. Robertson, who had, meanwhile replaced Superintendent Wilson, and Vice-President Roy Price, in general charge of operations, under which of the three agreements the parties were "actually working." According to Larish, he was never able to obtain a satis- T The findings in this section are based upon the undisputed testimony of Larish, called as an adverse witness by the General Counsel. Wilson, although present at the hearing, was not called to testify, and both Respondents rested at the conclusion of the General Counsel's case without calling any witnesses. 9 So designated by Larish in his testimony. ENGINEERS LIMITED PIPELINE COMPANY 185 factory reply .9 The-project was begun early in March, and eventually completed late in September 1950. It is undisputed that, under the arrangement reached between Wilson and Larish on the Sunday in question, the Company was to be permitted by the Union to "bring in one person [from outside the Union] on the job," though, according to Larish, this was, in any event, provided for in the Union's consti- tution. Be that as it may, when Wilson told Larish that "he was going to bring a man in," Larish consented. It is reasonably clear, even on the basis of Larish's meagre and guarded testimony, that correlatively, Wilson and Larish agreed that, with this exception, all other pipefitters or persons engaged in similar or related jobs over which the Union claimed jurisdiction, were to be hired or cleared through the Union. That this was the actual purpose and intent of the arrangement is evident from the events which afterward occurred. On Monday, March 6, the day after this arrangement was made, and, • in Larish's view, in disregard of the arrangement, Superintendent Wilson brought two men, N. C. Dupay, a welder, and Jack Kress, a line-up man, to the union hall for the obvious purpose of having them cleared for work at the project. Larish obtained "history cards" from the two men, and asked Wilson when they were to go to work. Wilson said that it would not be before Friday of the following week. Larish then told the two men to report to the Union for dispatch slips when they intended to go to work. B. Discrimination in regard to hire and tenure of employment William G. O'Toole was originally employed by the Company in June 1948, while he resided in Heber City, Utah. During his employment he worked as a gang pusher of a crew of timber fallers , and in various other. jobs, installing culverts, "throwing spreads" and acting as a welder's helper. Later, he was transferred to El Cerrito, California, and from there to Bakersfield, where he was employed until the end of February 1950, with interim assignments to Santa Clara and Mona Hot Springs, "linking up pipe" and occasionally acting as night foreman. Late in February 1950, the Company notified' O'Toole that he was to be trans- ferred to the Pasco-Baker Project. He was then a member of Local 460, Bakers- field, California, affiliated with the International, here involved. On about March 1, he arrived in Pasco, and reported to the hall of the Respondent Union, where he informed Business Agent I. W. Lawson that he had been transferred by the Company to the Pasco-Baker Project. O'Toole told Lawson that he wanted to "check in" with the Local, and that he had written for his traveler's card to Local 460. Lawson told him that if he came in to see him when he received his card before the job started, he would see what he could do to take care of hiln. O'Toole, however, left for the job site at Burbank, Washington, across the Snake River and, after reporting to Spread Foreman J. B. Jones, was assigned to the job of "running clamps" on 6-inch pipe. He worked on the job B Asked at the hearing what agreement he and Wilson had reached at the union hall on Sunday, March 5, Larish replied laconically , and without further explanation, "The California Pipeline Agreement." Larish admitted, however, that he later furnished the Field Examiner with copies of the "California agreement " which he had obtained from the Locals. When shown by the General Counsel what purported to be an unexecuted carbon copy of one such agreement , Larish was unable to identify it positively as one of those he had given the field examiner . In view of the lack of sufficient identification, and the absence of an adequate foundation , the document was excluded , on objection, and filed at the General Counsel's request with the rejected exhibits, 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through March 14, 1950, when his employment was interrupted under circum- stances presently described10 On the morning of March 13, 19550, a committee of the Union, comprised of N. P. Hickman, Ralph Quinn and Eddie Kotell, acting on instructions from Larish, went to the job site to investigate the employment situation regarding pipe fitters. They obtained the names of the pipe fitters and welders, and. Fore- man Jones, and reported them to Larish. Larish instructed Hickman to notify these men to report to the union hall at noon next day. Pursuant to this notifica- tion, Superintendent Wilson drove Foreman Jones, N. C. Dupay, Jack Kress and O'Toole to the union hall at the appointed time. . In the discussion which followed, the men asked Larish what agreement he had reached with Wilson, presumably regarding employment of pipe fitters and related workmen on the project. The record does not disclose whether he, or, for that matter, Wilson, made any direct reply. Wilson, however, asked Larish to clear all 4 men, including Foreman Jones. Larish, after remarking that there were about 750 idle union men in the Local, and that the Union expected some of its members to obtain work on the project, protested the transfer by the Com- pany of 4 of its men from California, inferentially, in violation of his under- standing with Wilson. Larish then said that he would clear only one man at that time, and that Wilson could take his choice between Jones and Dupay, because he would not clear Kress. O'Toole interposed that his clearance was on the way, and asked Larish to clear him, as well. Larish stated emphatically that he would have nothing to do with O'Toole, and refused to discuss his case further. Finally, Larish agreed to clear Dupay, in addition to Foreman Jones.n Superintendent Wilson told Kress and O'Toole to "stand by"; that "he would see what he could do for [them], [but] that it would take a little time." O'Toole did not return to work that day, and remained out of work until April 3, 1950, when he was reinstated by the Company." The Company contends that Superintendent Wilson's instruction to Kress and O'Toole to "stand by" was not intended, and could not reasonably have been construed, to mean that they were to regard their employment as having been suspended. The remark, it asserts, in effect, was intended merely, as a direction to "stand by" momentarily while Wilson pursued the matter with Larish. Fur- thermore, the Company argues since O'Toole did not present himself for em- ployment thereafter until April 3, and offered no explanation for his failure to do so, he had voluntarily abandoned his employment. In the first place, it is clear from the discussion that preceded Wilson's remarks that Larish had 10 Although O'Toole testified that he had been working for about 6 days when this occurred, it is apparent that he was mistaken about this, as he was regarding dates generally, and his periods of unemployment, involved in this proceeding. The undisputed payroll records of the Company indicate that O'Toole's first period of employment on this project began February 28, and continued through March 14, 1950, the first 3 days consisting of travel time from Bakersfield to Pasco, which he was allowed by. the Company. 11 According to Larish, foremen were eligible for membership in the Union. The record does not disclose, however, whether the arrangement entered between Larish and Wilson was intended to apply to foremen over whom the Union claimed to assert jurisdiction. Because of the absence of such allegation in the complaint, the inconclusive state of the record in this regard, and the unprotected status of supervisors under the Act, generally, the undersigned makes no finding as to whether the arrangement entered by the parties was applicable to foremen, and if so, violative of the Act. 12 The complaint does not allege discrimination in regard to the hire and tenure of employment of Kress. With regard to O'Toole, he testified, somewhat inaccurately, that this period of his unemployment lasted from 18 days to 3 weeks. According to the, company payroll records, however, on which the finding regarding the duration of his unemployment is based, O'Toole's first period of employment at this project ended March 14, 1950; his second period began on April 3, 1950. ENGINEERS LIMITED PIPELINE COMPANY 187 obdurately refused to grant O'Toole clearance at that time, and that he stren- uously opposed O'Toole's employment without such clearance. It is equally clear that Wilson was unwilling to continue O'Toole in the Company's employ as a pipe fitter in the face of Larish's determined opposition and the probable consequences of defying such opposition,-consequences which did, in fact, later materialize. Under these circumstances, Wilson's direction to O'Toole to "stand by," particularly when coupled with the further remark that he would see what lie could do, but that it would take a little time, scarely lends itself to the in- terpretation urged by the Company. It is more reasonable to conclude, as O'Toole justifiably did, that Wilson meant for him to remain away from the job until the Company notified him that the Union's objection had been overcome, or that some satisfactory arrangement had been reached which would permit him to return to work. Until then, it would have been futile for him to report for work, and the law does not require him to perform a futile act's The undersigned, therefore, finds, contrary to the Company's contention, that, by his instruction to O'Toole to "stand by," Wilson suspended him from employ- ment as a pipe fitter, because of his inability to obtain clearance from the Union, until such time as the Union could be prevailed upon to permit his employment in that capacity. According to O'Toole's uncontradicted testimony, he returned to work on April 3, on instructions from Foreman Jones and Superintendent Wilson. He worked that day as a pipefitter, encasing 6-inch pipe. Next day, April 4, Larish himself appeared at the job site. When O'Toole spied Larish he ran toward the river to escape being observed by him, fearing, as O'Toole testified, that he would. be subject to fine by the Union if he were discovered working. Larish, however, realizing that O'Toole was working on the job, notified Foreman Jones that he was shutting down the pipe-fitting operation, and told him to have the four men employed on the operation report to the union office." O'Toole returned to discover that that part of the job had been shut down because he and Kress had been working there. Soon afterward, according to O'Toole, the time- keeper, whom he could identify only as Frank, told him and Kress, assertedly on 'instructions from Superintendent Wilson, to leave the job so that work might be resumed." Later, O'Toole spoke to Foreman Jones, who suggested that they wait for Vice-President Price to "clear the matter up." As he was about to leave, 'O'Toole encountered Price and spoke to him and Foreman Jones. Price told O'Toole, in substance, that he "had better get off the job," and that he, Price, would see what could be done later. O'Toole thereupon left, having worked 3 hours that day as shown by the payroll. The pipe-fitting job which had, mean- while, been shut down for several hours was then resumed. O'Toole testified that he was "off the job" for 2 or 3 weeks afterwards. The records of the Company, however, show that he was actually on the payroll for 8-hour days on Wednesday and Friday, April 5 and 7, and from Tuesday, April 11, to Saturday, April 15, 1950, both inclusive. Although paid the regular pipe- fitter's rate, he performed merely laborer's work during this period. 14 Cf. Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd 185 F. 2d 1020 (C. A. 5). .11 The men did not report to the union hall on this occasion . Later that afternoon, Vice-President Roy Price , of the Company , conferred with Larish at the union office, presumably with respect to the shutdown , but the record is silent as to the nature of the discussion or what decision, if any, was reached. 11 The timekeeper was not otherwise identified , and the evidence concerning what he told O'Toole and Kress was received subject to later connection . In view of O'Toole's uncontradicted testimony , presently related, in which he attributed similar instructions to Vice-President Price, it is unnecessary to rely on the testimony regarding the statement purported to have been made by the timekeeper. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notwithstanding that the payroll records show April 15 as the last date of his actual employment, O'Toole restified that he entered upon a third period of employment with the Company, at a time which he could only fix as 2 or 3 weeks after his last layoff, apparently referring to the episode of April 4. During this period, according to him, he was assigned to taking soundings from the barge which was moving across the river with the pipeline. Later he was assigned to digging holes for road bores under the highway between Fairbanks and Wallula, Washington, and performing general laborers' work. He con- cluded, however, that this work was not steady enough, and voluntarily termi- nated his employment. O'Toole was unable to recollect how long he worked during his so-called "third" period of employment, and did not testify as to the date of his termination. In view of the fact that he was evidently mistaken and con- fused regarding dates generally, the duration of his unemployment, and the'period of his last employment with the Company, and particularly in view of the payroll records showing the last date of his actual employment as April 15, the under- signed concludes and finds that O'Toole voluntarily terminated his employment on April 15, and that his testimony regarding his "third" period of employment related to the period immediately preceding April 15, between April 11 and that date. At an unspecified date, presumably during the latter period, O'Toole reported to the union hall on instructions from Hickman. Larish offered to dispatch him to a job as a welder for a construction firm near Hanford, Washington. O'Toole refused the offer because he did not regard himself qualified for that job, and for the further reason that he preferred to work for the Company. Still later, Larish offered to dispatch him to a job as a pipefitter with Morrison, Bechtel and Macco, a firm of contractors, at Ontario, Oregon, which he accepted." Upon completion of his work there, he returned to his home in Heber City, Utah, and, after some further interim employment, returned to the employ of the Company as a pipefitter at Bakersfield, California. Apart from the evidence already related, the General Counsel introduced, over the strenuous objection of counsel for the Respondents, a letter, dated August 3, 1950, addressed by James J. Molthan, counsel for the Union, to the attention of the Field Examiner of the Board assigned to investigate the case, written in response to the latter's request. According to its recital, the letter consisted of a "factual narrative concerning the circumstances giving rise to the charge" filed against the Union. The General Counsel contended at the hearing that the statements contained in the letter constituted admissions by the attor- ney, an authorized agent, binding on the Union, though not on the Company. After reciting in considerable detail the circumstances culminating in the arrangement reached between Larish and Wilson on March 5, substantially as found above, the letter quoted the following purported excerpts from an agree- ment adopted by the parties in their arrangement, and previously referred to in the record merely as the "California Agreement".: Article 5 of the Southern California agreement described reads as follows Article 5 Assignment of Men (a) When a Contractor starts an operation in the jurisdiction of one:of the Unions, covered by the terms of this Agreement, other than that in which 16 The record does not disclose whether O'Toole had been granted clearance by the Union in the meantime. ENGINEERS LIMITED PIPELINE COMPANY . 189 the Contractor's shop is located, lie will report to such Union having juris- diction prior to starting work. (b) Regular resident local journeymen members capable of performing the work required shall be given preference on each job in the area covered by the terms of this Agreement where a signatory local Union is established, but the Unions hereby agree that if the local Union in such area or areas fails to supply sufficient capable resident local journeymen , members of the United Association , then it shall be the duty of the United Association to furnish additional journeymen . It is understood that Contractors may bring into the jurisdiction of any local Union signatory hereto one member of the United Association not a member of said local Union. Additional U. A. journeymen may be brought into the local jurisdiction by consent of the appropriate local Union, signatory hereto. (c) Contractors or their executive representatives , other than the clas- sifications of workmen covered hereunder , shall request assignment of work- men from local unions having jurisdiction , fifty per cent of such requests to be called by name at the option of the Contractor. There follows a detailed recital of the events following the arrangement reached on March 5, corresponding, in material respects, to the findings already made. The letter concludes with the following: My investigation of the circumstances of this case discloses that the status of Mr. O'Toole in respect to such employment opportunities as may have been denied him by Local Union 598 grew out of his contract of membership in the [International Union]. Mr. O'Toole's obligation of membership, which he voluntarily assumed, created the conditions which he alleges resulted in the commission of an unfair labor practice by Local Union # 598 against him. Such penalties as were imposed upon Mr:- O'Toole for violation of his contract of union membership with each and every other member of the [International Union] followed all of the requirements of due process of law as that phrase applies to the conduct of disciplinary tribunals under the general law governing all unincorporated associations. Apart from the Union's refusal to concede at the -hearing the existence of an arrangement or oral agreement alleged to have been reached on March 5, the position stated in the letter is substantially the same as that asserted by counsel for the Union at the hearing, both in oral argument and in the motions to dismiss. As already stated, the General Counsel concedes that the admissions contained in the letter are not binding on the Company . He contends , however, that they are admissib le against the Union , and that the admissions completely support the allegations of the complaint. The general authority of counsel for the Union to represent it in these pro- ceedings is not in dispute. Although there was no showing that counsel was expressly authorized to write this letter , the Union has not raised any question as to his authority to do so, and has not attempted to disavow any of the statements contained therein. Called as a witness by the General Counsel , Molthan stated that when Larish consulted him, after having been notified of the filing of the charge, he advised Larish that "as long as Mr. Denham was the General Counsel for the Board that he [Larish] could forget about it ; that I didn't think that Mr. Denham was interested in such matters, and I didn't think that the facts were important enough for the Board to move on , and that he had nothing to worry 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about." 17 It is reasonable to infer from this testimony that, in addition to furnishing the field examiner with information to facilitate his investigation, Molthan's purpose in writing the letter was an endeavor to exculpate his client from any violation of the Act, and, presumably, to convince the General Counsel, ultimately, that no complaint should issue. Nevertheless, in addition to contend- ing that the letter contains inaccuracies, and that he so advised the field examiner, counsel for the Union maintained that the letter was inadmissible. As to any alleged inaccuracies, counsel declined the opportunity afforded him to correct or explain them, preferring to rely, presumably, on his legal.position as to the admissibility of letter.18 Although the question is not entirely free from doubt, the letter was received, in evidence against the Respondent Union. After careful reconsideration of the problem, the undersigned adheres to his ruling made at the hearing, especially since, on the basis of Molthan's testimony, quoted. above, the letter may reasonably be construed as having been "intended to influ- ence" the determination as to whether a complaint should issue. Whether, as a matter of policy, or propriety, the Board should rely upon evidence obtained under the circumstances revealed here, to establish the commission of an unfair labor practice is, the undersigned believes, within the province of the Board. It is unnecessary, however, to rely on the contents of the letter, and the undersigned has not done so, in arriving at his concluding findings. For, even without regard to those statements, the record fairly supports the essential allegations of the complaint. Thus, the preponderance of the reliable, probative 17 Apparently illolthan was referring to the proposal, previously announced by the General Counsel, that union authorization election. requirements be waiyed in the building 'construction industry because of the administrative impracticality of conducting. such elections. See 25 LRR 107. It should be noted, however, that, on June 6, 1950, the Board, for reasons there stated, publicly announced the rejection of this proposal; and stated, "If and when, however, any such case reaches the Board members for decision, we will have no choice but to enforce the law as written." 26 LRR 128. The charge here was filed on. July 21,_ 1950, after the announcement of the Board's policy. That this vexing problem is still unresolved appears from a recent hearing on oral argument before the Board, on February 13, 1951, involving the same problem, and, incidentally, the same International Union. 27 LRR 163. 18 In support of his position, counsel for the Union submitted the following authority : .. an attorney is not a person whose admissions may be used against the party-client, except so far as concerns the management of the litigation; and this principle applies equally to the quasi-admissions here, concerned and. to the solemn admissions already, discriminated (sic) (ante § 1057. post, § 2594). The reason for this limitation is that the attorney's admissions can affect his client so far only as he has authority to act 'as agent in his client's place (on the principle of § 1078, post). That authority, so far as it Is to be implied from the mere general appointment as attorney, and has not been enlarged In the particular case, extends only to the management of the cause. But, conversely, all his admissions during that management, including the utterances In the pleadings do affect the client." IVigmore on Evidence § 1063, Vol. IV, p. 43 et seq. The cases cited by Wigmore at this point, are not completely dispositive of the question, here. In one case, Pickert v. Hair, 146 Mass. 1, 4, 15 N. E. 79 (1888), a conversation "relating to a fact in controversy, but not an agreement relating to the management and trial of a suit, or an admission intended to influence the procedure," was held inadmissible. (Emphasis supplied). On the other hand, in Loomis v. If. Co., 159 Mass. 39, N. E. 82 (1893), an attorney's letter to a defendant, stating the circumstances of the alleged Injury to his client was held admissible . Lathrop, J. and Field, C. J. diss. This ruling, according to Wigmore, "confirms the preceding doctrine as to the authority of an attorney under_ his retainer for litigation merely, and proceeds upon his authority in this case to present and collect a claim,'-a palpably sound distinction, which may at any time come into play where the latter sort of authority is in fact given." In another case, cited by' Wigmore, it was held, "The concessions of'attorneys of record bind their clients in all matters relating to the trial and progress of the cause . . . [But] it has been ruled that what an attorney says in the course of casual conversation, relating to the controversy, is not evidence. The reason of the distinction is found in the nature and extent of authority given ; the attorney being constituted for the management of the cause In Court, and in England for nothing else ." 1849, Bell, J. in Turby v. Seybert, 12 Pa. St. 101, 105. ENGINEERS LIMITED PIPELINE COMPANY 191 and substantial evidence in the record as a whole establishes that, on March 5, 1950, the Respondent Company, through Superintendent Wilson, and the Re- spondent Union, through Acting Business Agent Larish, reached a mutual understanding or oral agreement by the terms of which the Union agreed to permit the Company to employ as a pipefitter on the project one person who was not a member of the Union, and the Company agreed, correlatively, that, with this exception, it would require all other persons employed in that classification to be members of, or to obtain clearance from, the Union. The effect of this understanding was to impose what amounted to closed shop and preferential hiring conditions, except as noted, in the hiring of pipe fitters on the project. Such an undertaking goes far beyond the permissive limits of the proviso to Section 8 (a) (3), and is violative of the Act.1D "It is well established that an employer's acceptance of the determination of a labor organization as to who shall be permitted to work for it is violative of Section 8 (a) (3) of the Act,, where, as here, no lawful contractual obligation for such action exists." 20 Nor does the employee's membership in the Union ox the Union's desire "to enforce an alleged obligation of such membership, [remove the case] from the applica- tion of that principle. Rather, by the act of yielding to the [Union's] demand that [the employee] be removed, the Employer perforce strengthened the posi- tion of the [Union] and forcibly demonstrated to the employees that member- ship in, as well as adherence to the rules of, that organization was extremely desirable. Such encouragement of union membership was particularly effec- tive when, as in the present case, the Employer deferred to the demand of the [Union] that employees be cleared through its hall, and membership appears to have been a condition precedent to obtaining the necessary clearance." n Nor does the fact that the arrangement or agreement was oral rather than in writ- ing affect these conclusions 22 Furthermore, the Union as a party to such ar- rangement, became jointly responsible with the Company for the discriminatory policy, of refusing to hire or retain employees who did not clear through the Union. That the Company participated in the execution of this unlawful arrangement can scarcely be disputed. Thus, on the day after the arrangement was made, Superintendent Wilson brought Dupay and Kress to the union hall in an attempt to effect their clearance. Again, on March 14, when Wilson accompanied the four men to the union hall in an endeavor to effect their clearance, and Larish refused to clear all but one, besides the foreman, Wilson capitulated, and sus- pended the remaining men. In pursuance of this unlawful policy O'Toole was suspended from employment as a pipefitterfrom March 15, until April 3, and, again, on April 4, when Larish caused the pipefitting operation to be shut down because O'Toole was working on the job without having been cleared by the Union. That the Company, after his original transfer to Pasco, retained him in its employ from March 1 until March 14, despite the fact that he had not, meanwhile, been cleared by the Union, and, following his suspension on April 4, continued him on the payroll for part of the time until April 15, does not relieve either of the Respondents of their responsibility for the discriminatory "It may be observed , In passing, that, even under the union security permitted by Section 8 (a) (3), an employer may not justify discrimination against an employee for nonmembership in a union, except under the circumstances therein provided. 20 American Pipe and Steel Corporation, 93 NLRB 54, and cases cited. See also, New York State Employers Association, Inc., et at., 93 NLRB 127; Carpenter & Skaer, Inc., et at., 93 NLRB 188; Childs Company, et at., 93 NLRB 281; Sub Grade Engineering Company, et at., 93 NLRB 406. 81 American Pipe and Steel Corporation, supra, 22 Von's Grocery Company, 91 NLRB 504; N. L. R.'.B. v. Scientific Nutrition Corporation, 180 F. 2d 447, 449 (C. A. 9). 1 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD treatment to which he was otherwise subjected. Although he apparently sus- tained no loss of earnings as a result of the discrimination during the period from April 11 through April 15, the record establishes that he was employed as a laborer rather than a pipe fitter, the job to which he had been entitled, and which, but for the unlawful requirement that he clear through the Union, he would have held. That, in itself, constitutes discrimination, without regard to whether he sustained any actual pecuniary loss during that interval. The fact that arrangements such as that entered into by the Respondents may have been customary in the building construction industry, is, of course, no defense to the unfair labor practices in which they engaged. This contention has already been considered and rejected by the Board." Nor does the fact, as the Union contended orally, and in its motion to dismiss, that the Board has not yet evolved a practical solution for conducting union-authorization elections in the building construction industry, afford the Union any justification for violating the plain provisions of the Act 2' The arrangement which the Respondents entered, and under which they. operated, here, far exceeded "the limited type of union-security permitted by the amended Act." " Such an arrangement is illegal "without regard to whether [it is] authorized by an election conducted under Section 9 (e) of the Act."" Moreover, even under the limited union se- curity permitted under the Act, a union may not cause an employer to discriminate against an employee, except for the reasons permitted by Section 8 (b) (2). In these circumstances, the fact that O'Toole, as a member of a sister local, reported to the Union upon his arrival at Pasco and, before presenting himself at the project, attempted to negotiate his clearance, presumably in obedience to the requirements of the constitution or bylaws of the International, did not estop him from later invoking the protection of the Act. Nor did it relieve the Union of the duty to comply with the provisions of the Act. By the same token, the fact that O'Toole momentarily left the job when Acting Business Agent Larish appeared at the project on April 4, because he believed that, as a union member, he might be subjected to a fine if he were found working, afford the Union no immunity from the sanctions provided in the Act. Counsel for the Union argues that the Union was justified in denying O'Toole clearance as a pipe fitter because he had failed to comply with the provisions of the International's constitution regarding the duties of traveling members, and that whatever penalty he sustained resulted from his violation of the con- tractual obligation which be had assumed as a member of the International. This contention is based on an apparent misconception of the issues involved. The further contention, that enforcement of the pertinent provisions of the Act would constitute an infringement of the guarantees of the Constitution, similarly misconceives the issues. The Act leaves unimpaired "the right of a labor organi- zation to prescribe its own rules with respect to the acquisition or retention of membership therein." 27 But it does not permit a union, under the guise of enforcing such rules, to impose union membership as a condition of employment, except under express conditions authorized by the Act. Whatever disciplinary action the Union, or its parent organization, may have seen fit to take to enforce O'Toole's obedience, as a union member, to the provisions of its constitution and bylaws, it could not do so by requiring the employer to discriminate against him, without running afoul of the Act. No more than it could, by invoking the con- stit•.itional protection against involuntary servitude, maintain that the shutdown Daniel Hamm Drayage Company, Inc., supra; Guy F. Atkinson Co., 90 NLRB 143. '" See footnote 17. "Pen and Pencil Workers-Union, 91 NLRB 883, and cases cited. "Hawley & Hoops, Inc., 83 NLRB 371. 21 Section 8 (b) (1) (A), proviso. ENGINEERS LIMITED PIPELINE COMPANY 193 of the pipe fitting operation, on April 4, was merely a manifestation by the union men of their refusal to work with nonunion men, when it utilizes this stratagem as a means of causing an employer to discriminate against nonunion employees in violation of the Act. Upon the basis of the foregoing, and upon the entire record, the undersigned, therefore, finds that, by entering into the unlawful arrhngement or oral agree- ment, on March 5, 1950, by which it agreed to hire as pipe fitters only persons cleared by the Union, except as already noted, by executing said arrangement, and by discriminating in regard to the hire and tenure of employment of O'Toole, pursuant thereto, thereby encouraging membership in the Union, and interfering with, restraining, and coercing employees in the exercise of, or failure to exercise, the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor ' practices within the meaning of Section 8 (a) (1) and (3) respectively. The undersigned further finds that, by entering into and enforcing such unlawful arrangement, and attempting to cause and causing the Respondent Company to discriminate against O'Toole, in pur- suance of said illegal arrangement, and in violation of Section 8 (a) (3), and by restraining and coercing employees in the exercise of, or failure to exercise the rights guaranteed in Section 7, the Respondent Union has engaged in and is engaging in unfair labor practices, in violation of Section 8 (b) (2) and (b) (1) (A), respectively, of the Act 28 The complaint also alleges that the Respondents entered into a collective bar- gaining agreement, on or about March 6; 1950, at a time when the Respondent Company did not have in its employ a representative complement of employees in the classifications covered by said agreement, recognizing the Respondent Union as exclusive representative of all employees in said classifications. Since the evidence does not sufficiently establish the actual number of employees in, or the precise description of, the appropriate unit, nor that the Respondent Union did not, in fact, represent a majority in said unit at the time the agreement was entered into, it is found that these allegations of the complaint have not been sustained. In any event, the recommendations made herein are, in the opinion of- the undersigned, adequate to redress the unfair labor practices in which the Respondents have been found to have engaged, and, generally, to effectuate the policies of the Act. It will, therefore, be recommended that these allegations be dismissed. IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in Section III, above, occurring in connection with the operations of the Respondent Company, described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondents entered into an oral understanding or agreement on March 5, 1950, providing for illegal closed shop and preferential hiring conditions with respect to pipe fitters on the Pasco-Baker Project. The record indicates that the understanding or agreement was to remain in effect only for the duration of the project, and it is undisputed that this was completed by the end of September 1950. The undersigned will, nevertheless, recommend 28 American Pipe and Steel Corporation, and cases cited . See also cases cited in footnote 20, and Acme Mattress Company, Inc., 91 NLRB 1010; National Union of Marine Cooks & Stewards, 90 NLRB 1099. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondents cease and desist from giving effect to any of the closed shop or preferential hiring conditions imposed by said agreement, and from entering into, renewing, or enforcing any agreement which requires membership in the Respondent Union as a condition of employment, unless such agreement shall have been authorized pursuant to the proviso to Section 8 (a) (3). It will further be recommended'that the Respondents cease and desist from engaging in any of the unfair labor practices which they have been found to have committed, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Company has discriminated with regard to the hire and tenure of employment of William G. O'Toole, thereby encouraging membership in a labor organization, and interfering with, restraining, and coerc- ing employees in the exercise of the rights guaranteed in Section 7 of the, Act. It has further been found that the Respondent Union has attempted to cause and has caused the said Company to discriminate in regard to the hire and tenure of employment of said O'Toole, thereby restraining and coercing employees in the exercise of, or failure to exercise, the rights guaranteed by Section 7. It has also been found that O'Toole voluntarily terminated his employment on the project, on April 15, 1950, after having been reinstated by the Company, and that, at the time of the hearing, he was in the employ of the Company, apparently in the same capacity in which he had been employed at the time of the original discrimination against him. It is, therefore, unnecessary to recommend that the Company offer him reinstatement to his former or substantially equivalent position. Since it has been found, however, that the Respondents are jointly and severally responsible for such discrimination as he suffered, it will be recom- mended that the said Respondents, jointly and severally, make said William G. O'Toole whole for any loss of earnings suffered by him by reason of said discrimination, by payment to him of a sum of money equal to that which het would normally have earned as wages in the Respondent Company's employ from March 15, 1950, the date of the original discrimination against him, to April 3, 1950, the date on which he was reinstated to his employment with said Company. O'Toole was. again laid off or suspended, however, on April 4, but worked 2 days during that week, and 5 days the following week. Although he was employed as a laborer during this period rather than a pipe fitter, he was paid at the pipe-fitter's rate of pay, and, thus, suffered no loss of pay for, the period he was actually employed. It appears, however, that, because of the discrimination against him, he worked only a portion of the period between April 3, 1950, the date of his reinstatement, and April 15, 1950, when he voluntarily terminated his employment. It will, therefore, be recom- mended that he also be made whole for any loss of earnings he may have suf- fered by reason of said discrimination (luring the period from April 3, 1950, to April 15, 1950,29 less his net earnings during each of said periods 30 In accordance with the Board's present policy, loss of pay shall be computed as provided in F. W. Woolworth Company, 90 NLRB 289, and, as directed therein, the Respond- ent Company shall, upon request, make, available to the Board and its agents 4 ^ The General Counsel contends that the liability for hack pay should continue until • the date of the completion of the project in September 1950. Since it has been found that O'Toole voluntarily terminated his employment on April 15, 1950, the contention is rejected. 10 Crossett Lumber Company, 8 NLRB 440, 491, 498; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7 ; Gullett Gin Co., Inc. v. N. L. R. B., 340 U. S. 361. ENGINEERS LIMITED PIPELINE COMPANY 195 all records pertinent to the determination of the amount of back pay due O 'Toole. The illegal activities in which the Respondents have engaged , including the discriminatory treatment of O'Toole , strike at the primary objectives of the. Act, and manifest a purpose to defeat employees in the exercise of the rights guaranteed thereunder . The unfair labor practices which the Respondents have committed are persuasively related to other unfair labor , practices pro- scribed by the Act. The undersigned is convinced that danger of the commis- sion of such practices in the future is to be anticipated from the Respondents' conduct in the past, and that the preventive purpose of the Act will be frustrated unless this recommended order is made coextensive with the threat . In order to make effective the interdependent guarantees of Section 7, and thus effectuate the policies of the Act, it will also be recommended that the Respondents cease and desist from infringing in any manner upon the rights of employees guaran- teed by the Act." Upon the basis of the foregoing findings of fact, and upon the entire record in these cases , the undersigned makes the following: CONCLUSIONS OF LAW 1. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , Local Union No. 598, AFL, is a labor organization within the meaning of Section 2 ( 5) of the Act. 2. By entering into and enforcing the unlawful oral contract or understand- ing of March 5, 1950, and by discriminating in regard to the hire and tenure of employment of William G. O'Toole, thereby encouraging membership in the Respondent Union, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act. 3. By the foregoing discrimination , and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the Act. 4. By attempting to cause, and causing the Respondent Company to discrim- inate in regard to the hire and tenure of employment of William G. O'Toole, in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act , the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) 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; 7. The Respondents have not, except to the extent found above , otherwise engaged in unfair labor practices , or violated the Act. [Recommended Order omitted from publication in this volume.] 31 Childs Company, et al., 93 NLRB 291 ; May Department Stores v. N. L. R. B., 320 U. S. 376; N. L. R. B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C. A. 4). 9 619 74-52-VVol. 95-14