Utah Construction Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UTAH CONSTRUCTION Co. and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 114, LOCAL LODGE No. 1066 UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1498 AND LOCAL No. 184, AFL and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 114, LOCAL LODGE No. 1066. .Cases Nos. ,00-CA-310 and-20-CB-93: July 17, 1951 Decision and Order On November 30, 1950, Trial Examiner Hamilton Gardner issued his Intermediate Report in the above-entitled consolidated proceed- ing, finding that the Respondents, Utah Construction Co., herein called the Respondent Company or the Company, and United Brother- hood of Carpenters and Joiners of America, Local No. 1498 and Local No. 184, AFL, herein called the Respondent Unions or the Unions, had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also , found that the Respondents had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent Company, the Respondent Unions, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent Company and the Respondent Unions also requested oral argument. This request is hereby denied because, in our opinion, the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Ili- termediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recom- ' The Intermediate Report contains several misstatements of fact and inadvertences, none of which ' affects the Trial Examiner's ultimate conclusions or our concurrence therein. However , we note the following corrections: (1) The motion to amend their answer made by the Respondent Unions at the beginning of the hearing related to the Unions' contention that neither Olsen or white was an employee within the meaning of the Act and not, as the Trial Examiner stated, to a contention that both were employed by the Union Pacific Railroad Company; ( 2) the Company 's district offices are located in Richmond , California, and in Salt Lake City, Utah , rather than in San Francisco and Salt Lake City; ( 3) the record does not support the Trial Examiner 's finding that the Company maintained a job office in Leadville, Colorado, during 1949 ; and (4) the Trial Examiner inadvertently stated that the Respondents ' 1949 contract antedated, rather than postdated , the events of May 2, 1949. 95 NLRB No. 30. UTAH CONSTRUCTION CO. 197 inendations of the Trial Examiner to the extent indicated below, but with the following additions and modifications:' 1. We find, in agreement with the Trial Examiner, that the Re- spondent Company is engaged in commerce within the meaning of the Act and that it would effectuate the policies of the Act to assert juris- diction. The Respondent Company is engaged in construction work throughout the western United States and in Mexico, and, in connec. tion therewith, maintains corporate offices in Ogden, Utah, and in San Francisco, California, and district offices in Richmond, California, and in Salt Lake City, Utah. The volume of business done by the Respondent Company in its entirety is not apparent. The record reveals, however, that the volume of business done by its Salt Lake City district office alone during 1949, when the alleged unfair labor practices occurred at the Kennecott Copper project in Garfield,.Utah, was approximately $12,000,000 of which amount easily in excess of $500,000 represented payments. for materials shipped to the Company from sources outside the State of Utah. The Respondent Company is a multistate enterprise which is clearly engaged in interstate commerce within the meaning of the Act.3 In this connection, we find no merit in the Company's contention that, because its Salt Lake City district is an independent branch of the Company allegedly operating entirely within the State of Utah, the Company cannot be viewed as a multistate enterprise. Moreover, even assuming that the assertion of jurisdiction were to turn on the commerce facts relating to the Company's Salt Lake City district alone or even on those relating solely to the Kennecott Copper, or Garfield, project, we would nevertheless assert jurisdiction. Thus, as to the district's operations, it is clear from our findings above that, during 1949, the Company purchased materials outside the State valued at over $500,000 4 With respect to the Garfield project, the record reveals that, during 1949, in connection with its construction 2 The material facts relating to the specific discriminations against Olsen and White. discussed infra, depend largely upon the testimony of Olsen and White, which the Trial Examiner credited . The Company contends that the Trial Examiner 's reliance upon the testimony of these witnesses, "whose credibility the Trial Examiner questions in numerous passages of the intermediate Report" has resulted in discrediting the testimony "of numerous reliable witnesses whose credibility is in no instance questioned by the Trial Examiner." We have, however , examined the conflicting testimony with regard to the material facts , taking into consideration the consistency and inherent probability of the testimony as a whole and the fact that. the Trial Examiner, and not the Board, had an opportunity to observe the witnesses. We are satisfied that the Trial Examiner's credibility resolutions are supported by the clear preponderance of all the relevant evidence. Accordingly, we adopt the Trial Examiner's credibility findings and rely, as lie did, on the testimony of Olsen and White. Standard Dry Wall Products, Inc., 91 NLRB 544. The Borden Company, Southern Division, 91 NLRB 62R 4 Federal Dairy Co., Inc., 91 NLRB 638; Stone & Webster Enp:neering Corporation. 94 NLRB 197. During 1949, the Company's Salt Lake City district also sold slag valued at approxi- mately $200,000 to the Union Pacific Railroad Company, a company engaged in interstate commerce. which material was necessary to the operation of the latter company . Hollow Tree Lumber Company, 91 NLRB 635. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a copper,refinery for Kennecott Copper Corporation, the Respond- ent Company furnished materials and services valued at over $1,700,- 000 which were necessary to the operation of Kennecott Copper Cor- poration,5 over whom the Board has asserted jurisdiction 6 2.'As found by the Trial Examiner, the Respondent Company and the Respondent Unions were signatories to a contract executed on May 29, 1948, between Associated General Contractors of America,. Intermountain Branch, and Basic Building Trades Unions, affiliated with the American Federation of Labor. Article III of this con- tract, relating to hiring, provided, in pertinent part : A. The CONTRACTOR shall have entire freedom of selectivity in hiring and may discharge any employee, provided there shall be no discrimination on the part of the CONTRACTOR against any workman, nor shall any workman be discharged by reason of union activity not interfering with the proper performance of his work. C. The UNIONS agree to assist the CONTRACTOR in the procure- ment of competent workmen by maintaining at their offices lists of workmen who are qualified and competent and available for employment, which lists CONTRACTOR will refer to prior to the procurement of workmen. UNIONS agree to furnish upon re- quest the CONTRACTOR with competent workmen. Nothing herein contained shall deprive the CONTRACTORS from being the sole judge of the qualifications of workmen for employment. [Em- phasis supplied.] These provisions of the contract were invoked at the Garfield proj- ect, although no union-authorization election pursuant to Section 9 (e) (1) of the Act was ever held among the Company's employees on this project.? The Trial Examiner concluded, and we agree, that the 1948 con- tract between the Respondents was unlawful. The Respondents con- tend, however, that neither the 1948 contract nor the hiring practice pursuant thereto was violative of Section 8 (a) (3) or 8 (a) (1) of 5 The Company contends ' that there was no connection between its building activities and the operations of Eennecott Copper Corporation as the latter company did not occupy the premises while the construction work was being done . Similar contentions to the effect that building construction is an essentially local activity have recently been rejected by the Board. Paul W. Speer, Inc., 94 NLRB 317; The Plumbing Contractors Association of Baltimore, Maryland, Inc., et at., 93 NLRB 1081. 6 Hollow Tree Lumber Company, footnote 4, supra. The Board has recently asserted jurisdiction over this company's Garfield , Utah, refinery . Kennecott Copper Corporation, 92 NLRB 1786. 7 Similarly, the 1949 contract , referred to hereinafter , was invoked at the Garfield project although no union -authorization election had been held. UTAH CONSTRUCTION CO. 199 the Act. Thus, they rely on the provision in the contract reserving to the Company entire freedom of selectivity in hiring and on the absence of any requirement that the Company hire, from the lists maintained by the Unions. They argue further that, pursuant to this contract, the Company recruited workmen from all sources, and not solely from the Unions. It is true that Article III of the contract does not, on its face, require the Company to hire from the lists maintained by the unions. However, it does require the Company to refer to these lists before hiring any workmen. It is with respect to this crucial point that the contract is Obscure and ambiguous. Thus, the language of the contract may be interpreted as providing that the Company's obliga- tion to refer to the Unions' lists carried with it a concomitant obliga- tion to hire from these lists, or it may be read to mean, as the Respondents contend, that the lists were to be used merely as "a means of reference to determine the qualifications of workmen." In such circumstances, we look to the hiring practice of the parties pur- suant to this contract to resolve its ambiguity." By so doing, any doubt as to the meaning of this ambiguous agreement is completely dispelled. It becomes clear 'that the parties mutually interpreted and ad- ministered the contract as requiring the Company to hire through, or subject to clearance by, the Unions, clearance being conditioned upon union membership. Thus, according to the credited testimony of Olsen and White, Company Supervisors Ryan and Jeffries, and its personnel director, McAdams, who did all the hiring for the Gar- field project, informed their, when they applied for jobs at the proj- ect, that they could not be hired unless they obtained clearances from the Respondent Unions. These company representatives also made it clear, by their interrogation of Olsen and White; that they were con- sidering as applicants for employment, subject to clearance by the Unions, only those who were members. of the Respondent Unions. Further, Hunt, business representative of Respondent Local 184, tes- tified that, during the time that the 1948 contract was in effect, the Company called Local 184 ° for all carpenters, millwrights, pile driv- ers, saw filers, and apprentices,10 and that all employees hired for 8 See N. L. R. R . v. Scientific Nutrition Corporation, 180 F. 2d 447 (C. A. 9), where the court , finding that "the agreement was not so clear on the point in question as to be susceptible of but one construction ," looked to the practice pursuant to the contract to determine its meaning. See also 0 . B. Andrews Company, 86 NLRB 59. , 9 As stated by the Trial Examiner ; Local 184 issued all clearances and filled all requisitions for jobs on the Garfield project. It referred to the project both , its own members and members of locals in surrounding cities, including Local 1498 in Provo. These other locals supplied Local 184 with lists of qualified members in good standing. "These are the classifications listed under the jurisdiction of the United Brotherhood of Carpenters and Joiners of America in the 1948 contract. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these jobs had been cleared by local 184.11 He testified further that Local 184 issued clearances only to members in good standing of the Carpenters or to applicants for membership. In this connection, we do not rely on the testimony of George Put nam, the Company's district manager, and Vincent Ryan, its super- intendent of construction, with respect to the Company's hiring prac- tice on the Garfield project. Both Putnam and Ryan testified that they did no hiring and that all hiring for the Garfield project was origi- nally done by the Company's Salt Lake City office and, shortly after- wards, was done solely by McAdams, the Company's personnel direc- tor for the Garfield project. Indeed, Putnam did not testify as to how the Company procured employees for the Garfield project,. but merely related the Company's general methods of procuring employees for a job. McAdams, the only company official in a position to know the Company's hiring practice on the Garfield project, was not avail- able at the time of the hearing and did not testify. Accordingly,. and in view of the credited testimony of Olsen and White with re- spect to statements made to them by' McAdams, we believe that the testimony of Putnam and Ryan is too general and supposititious to be accorded any weight 12 It is therefore manifest from the credible testimony of Olsen and White and from the entire record that the Company pursued a policy of hiring exclusively through, or subject to clearance by, the Unions, and that the Unions, in filling requisitions or in approving individ- uals interviewed initially byv the Company, issued clearances only to their own members. Accordingly, we find that the Respondents' hir- ing practice reveals a mutual understanding that Article III of the 1948 contract would establish unlawful closed-shop conditions.13 We "At the hearing, Hunt admitted . on cross-examination , that he had made these state- ments in an affidavit to a Board field examiner and that, at the time he signed the affidavit, these statements were true . He testified further that, since that time , some nonunion men had been hired on the project . Hunt's affidavit was made sometime after September 28, 1949, the date the charges herein were filed , and after the 1948 contract had expired. Therefore, Hunt's testimony estr',lishes that, at least during the time that the 1948 contract was in effect, all such employees were hired through , or subject to clearance by, Local 184. Unlike the Trial Examiner, we do not rely on the testimony of William Ryan, business representative of Local 1498 , with respect to the hiring practice on the Garfield project. Ryan admitted that he had no knowledge of this practice . Moreover , much of his testi- many was in conflict with Hunt's testimony and with statements made by Ryan in a prior affidavit to a Board field examiner. 12 Therefore, we do not adopt the Trial Examiner 's findings , based on the testinrony of Putnam and Ryan, that , although a large percentage of the employees on the Garfield project had been cleared by the Respondent Unions . "others worked on the job who . . . had been secured from wholly independent sources " and that "the procurement of work- men . . . was not exclusively dependent on prior union approval ." Nor do we adopt the Trial Examiner 's other findings based on this testimony. 13 Childs Company, 93 NLRB 281. See National Maritime Union of America, 78 NLRB 971, enfd. 175 F. 2d 686 (C. A. 2), cert. den. 338 U. S. 954. Although Article III of the contract reserved to the Company freedom of selectivity in hiring , we believe that where , as here, such freedom of selectivity is limited to a choice among union members, It cannot mitigate the discriminatory character of such a hiring provision. UTAH CONSTRUCTION CO. 201 conclude, therefore, that, by executing this contract, the Respondents entered into an unlawful closed-shop arrangement and that the Re- spondent Company and the Respondent Unions thereby violated Sec- tion 8 (a) (3) and 8 (a) (1) and Section 8 (b) (2) and 8 (b) (1) (A) of the Act, respectively.14 3. We find, further, in accordance with the conclusion of the Trial Examiner, that the contract between Associated General Contractors and the Basic Building Trades Unions, A. F. L., executed by the Re- spondents on August 11, 1949, was similarly unlawful. Article III of this contract, setting forth the hiring provisions in more explicit terms than in the 1948 contract, provided, in part : A. In order to secure qualified workmen Contractor agrees to hire workmen who have previously been employed by the con- tractor or other employers in the classifications covered by the agreement. The unions agree to assist contractor in the pro- curement of such workmen and will furnish such men upon re- quest. Contractor will call on unions to furnish such workmen in the classifications herein contained. If a shortage of work- men exists or Union does not supply qualified workmen within a reasonable time upon request, Contractor may secure work- men from other sources. In such cases union will be notified of the procurement of such workmen through the facilities offered by the union. In all instances Contractor shall be the sole judge of the qualifications of workmen for employment. [Emphasis supplied.] The Company thus agreed to request the Unions to furnish em- ployees and the Unions agreed to supply the Company with person- nel. Moreover, the Company was obligated to defer its selection of workmen from other sources until a "reasonable time" had elapsed in which the Unions has failed to supply "qualified workmen." Al- though Article III does not expressly require the Company to hire only, or primarily, union members, Article VIII of the contract pro- vides that "all work covered by this Agreement shall be performed by members of Unions affiliated with International or National Unions affiliated with" the Building and Construction Trades Department of the American Federation of Labor. Considering these provisions together,- we find that, by executing this contract, the Unions under- took to supply the Company with "qualified workmen" among their own members, and the Company agreed to hire union members, if available. Accordingly, as the Respondents' 1949 agreement contained an un- 14 New York State Employers Association, Inc., et al., 93 NLRB 127. For the reasons stated in that decision we find merit to the General Counsel's exceptions to the Trial Examiner's failure to find that the Unions violated Section 8 (b) (1) (A) of the Act by executing this contract. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawful preferential hiring provision,15 we conclude that, by executing this contract, the Respondent Company violated Section 8 (a) (3) and 8 (a) (1) of the Act and the Respondent Unions violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. .4. We agree with the Trial Examiner's conclusion that the Re- spondent Company discriminated against .John Olsen in violation of Section 8 (a) (3) and 8 (a) (1) of the Act because of Olsen's non- membership in good standing in the Respondent Unions. We also find, as did the Trial Examiner, that, as Olsen never disclosed his membership in the I. A. M. to the Company, it did not discriminate, and could not have discriminated, against Olsen because of his mem- bership in the I. A. M. Olsen and Wendell Weston White applied for jobs at the Garfield project on May 2, 1949. Olsen had previously worked for the Com- pany on three or four other construction jobs. After making sev- eral inquiries at the project, Olsen and White met Vincent Ryan, the Company's construction superintendent, and asked him about the pos- sibilities of securing work. Ryan inquired as to their qualifications and asked if they belonged to the Union as "all jobs cleared through the union." Olsen showed Ryan his Carpenters' card and White re- plied that he had been working under a permit from the Operating Engineers. Neither mentioned that he was a member of the I. A. M. Ryan offered Olsen a job as a welder and gave him a note to take to McAdams, the Company's personnel director, to be "signed up." 18 As to White, Ryan said that McAdams might have some jobs that White could "clear out on." 17 . Olsen and White thereupon went to the Company's personnel office. Olsen showed McAdams the note which Ryan had given him and also informed McAdams that Ryan had told them that there were some openings that White could "clear" through the Unions. In response to McAdams' inquiry as to their union affiliations, Olsen showed McAdams his Carpenters' card and White showed him his I. A. M. book. When McAdams, who had started to write out a note for Olsen and White to take to Respondent Local 184, saw White's I. A. M. book, he scratched White's name off the note.18 McAdams also cau- tioned White not to show the book around if he wanted to get a job there. As to Olsen, McAdams gave him the note and told him to "take ,it into the Carpenters in Salt Lake for a clearance." . He also told 15 Pacific American Shipowners Association, 90 NLRB 1099. 16 As all hiring was done by McAdams , we find that Ryan's action was tantamount to a recommendation that Olsen be hired and was not an actual hiring subject to clearance, as the Trial Examiner found. 17 After leaving the personnel office, Olsen and White again met Ryan. Ryan told them that, if White could clear through the Unions, he could get one of the jobs that McAdams had available. 11 Unlike the Trial Examiner, we specifically find- that the name White was first written and then deleted. UTAH CONSTRUCTION CO. 203 White that he would have to clear through the Carpenters in order to get a job. Neither Olsen nor White was able to secure a clearance from the Respondent Unions. The following day, Olsen returned to the project and informed Ryan that the Unions had refused to clear ,him . Ryan stated that he would have to get a clearance before he could be hired. o . It is clear, therefore, that the Respondent Company made clearance by the Respondent Unions a condition precedent to Olsen's employ- ment, such -clearance being conditioned upon membership in good standing in the Unions; and that it refused to hire Olsen solely be- cause of his failure to obtain a clearance. The Company contends, however, that its conduct with respect to Olsen was not violative of the Act for the following reasons : (1) Olsen was not an employee within the meaning of the Act; (2) it sent Olsen to the Unions for a clearance merely to check on his qualifications and not pursuant to the alleged unlawful closed-shop arrangement'; and (3) there is no evidence to show that the Company knew of the Unions' refusal to, clear Olsen or that the Company ever refused to hire him, as Olsen never returned to the Company's personnel office "to complete his job application." The Company contends, further, that its conduct with respect to Olsen was not unlawful because it could not have encouraged or discouraged membership in a labor organization in view of the fact that Olsen was already a member of both Respondent Local 1498 and the I. A. M. We find no merit in the Respondent Company's contentions. The Company contends initially that, as Section 2 (3) of theAct excludes from its coverage any individual employed by an employer subject to the Railway Labor Act, as amended, and as Olsen was employed by the Union Pacific Railroad Company on May 2, 1949, the date on which he applied for work at the Garfield project, Olsen was not an employee within the meaning of the Act. However, this argument overlooks the fact that, as an applicant for employment with the Respondent Company, Olsen was clearly an employee within the mean- ing of Section 2 (3) of the Act vis a vis the Respondent Company, the only "employer" involved in these proceedings.19 " Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177. Nor do we find any merit in the Company's further contention in this connection that Olsen was not a bona fide applicant for employment because his "true motive was not to find a job, but rather to promote an incident to facilitate the filing of charges " against the Unions and the Company. In support of this assertion , the Company argues that Olsen did not accept Ryan's offer of reporting to work on the swing shift on May 2; that he prepared a memorandum that evening, recording his experiences with the Company and the Unions on that day ; and that Olsen never returned to the personnel office to complete his employment application . Although Olsen did not accept Ryan's offer to start work on May 2, there is nothing to indicate that, if Olsen had done so , he would have been hired without a clearance from the Unions. The presumption is to the contrary , as Ryan had already informed Olsen that all jobs cleared through the Unions. Moreover, the Company's argument overlooks the fact that its discrimination against Olsen occurred on May- 2, when 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the Company's second contention, it seems clear that the Company, after offering Olsen a. job as a welder, sent him to the Unions for a clearance, not to check on his qualifications, but in accordance with the unlawful hiring provisions of its contract with the Unions. As Olsen was a former employee of the Company, and had previously worked with at least one ofmthe supervisors on the Garfield project, the Company was in a position to know, or easily ascertain, Olsen's qualifications. Moreover, it seems highly unlikely that the Unions would have been able to pass upon Olsen's ability as a welder, a job classification which did not come within their jurisdiction. Although it is not entirely clear why the Company did send Olsen to the Respondent Unions, locals of the Carpenters, for a clearance rather than to one of the unions which had jurisdiction over welders pursuant to the contract, we believe, and find, that the Company's conduct is attributable to the fact that Olsen claimed membership in the Carpenters and to the desire of the Company to conform to the Unions' admitted policy of insisting that all their members be cleared by them before being hired. Furthermore, our conclusion that the Company was acting pursuant to the unlawful hiring provisions of its contract with the Unions is buttressed by the following : When Olsen applied for work on May 2, he was informed by several company supervisors, including Construction Superin- tendent Ryan and Personnel Director McAdams, that all jobs had to be cleared through the Unions. Similarly, When Olsen returned to the project on May 3, Ryan made it clear to him that, regardless of the Unions' reasons for refusing to clear him, the Company would not hire Olsen without a clearance. Nor do we find any merit in the Company's contention that Olsen was under an obligation to return to the Company's personnel office after having been unable to obtain a clearance from the Unions. As the Company had already informed Olsen of its discriminatory policy of requiring union clearance as a condition of employment, it would have been futile for Olsen to reapply for work at the project.20 In any event, Olsen did return on the following day to press his re- quest for employment and was again informed by Ryan that he could not be hired without a clearance from the Unions. The Company's further assertion, that its actions with respect to Olsen could not have encouraged membership in the Respondent it informed Olsen of its discriminatory hiring practice. Therefore, Olsen was under no obligation to return to the personnel office after he had been unable to obtain a clearance from the Unions. Swinerton and Walbery Company, et al., 94 NLRB 1079; Arthur 0. McKee and Company, 94 NLRB 399. Similarly, it was not unreasonable for Olsen to have prepared a memorandum on the evening of May 2, setting forth his unsuccessful attempts to secure employment with the Company. We therefore find nothing in the record to impugn the good faith of O1sen's application for employment. 20 Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 (C. A. 5) ; Swinerton and Walberg Company, et al., footnote 19, supra. UTAH CONSTRUCTION CO. 205 Unions as Olsen was already a member of Respondent Local 1498, is similarly without merit. The Board recently rejected an identical argument, finding that discrimination fostered by a union, even against one of its own members, encourages union membership as it strengthens the position of the union and "forcibly demonstrate[s] to the employees that membership in, as well as adherence to the rules of . . ." the union is "extremely desirable." 21 5. The Trial Examiner found that the Respondent Company did not violate Section 8 (a) (3) of the Act by its actions with respect to White, as the Company at no time agreed "to employ White con- tingently or otherwise" and Ryan had, in fact, told White that no jobs were available. We disagree. • The facts, as outlined above, establish that, when White applied for work, Ryan informed White that, although he' did not know of any job openings, McAdams would probably have some jobs available which White could "clear out on." Ryan did not unequivocally deny White employment; on the contrary, he referred White to the person- nel office, where all hiring was done. McAdams refused to.accept White's application for employment, but it is clear that he did so only because he learned of White's membership in the I. A. M. and of his nonmembership in the Respondent Unions. Thus, as soon as McAdams saw White's I. A. M. book, he scratched White's name off the note he was writing to Respondent Local 184 and cautioned White that he had better not show "that book" around if he wanted to get a job with.the Company. McAdams also informed White that, in order to get a job, lie would have to clear through Local 184. The Company contends, however, that White was not an employee within the meaning of the Act as he never applied for a job and there was no job available for which he qualified. We find no merit in this contention. Although Olsen acted as spokesman for White in their joint attempt to secure employment, White's desire for employment was made known to the Company. Indeed, in response to Ryan's inquiry, White informed him of his qualifications and past experi- ence. Furthermore, in view of the discriminatory policy in existence and communicated to White, the fact that there may not have been a job available for White at the time he applied for work is im- material in deciding whether White effectively applied for employ- ment or whether he was discriminatorily denied employment 22 By its action, the Company effectively excluded White from the status of an applicant for employment who would be considered when jobs were available. 21 American Pipe and Steel Corporation. 93 NLRB 54. See also Consolidated Western Steel Corporation, 94 NLRB 1590. 22 Daniel Hamm Drayage Company, Inc., footnote 20, supra; Swinerton and Walberg Company, et al., footnote 19, supra; Arthur G. McKee and Company, footnote 19, supra. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, therefore, that, by refusing, on May 2, 1949,,to consider White as an applicant for employment, the Respondent Company discriminated against him, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, because of his nonmembership in the Respondent Unions and his membership in the I. A. M.23 6. We find, contrary to the Trial Examiner, that the Respondent Unions caused the Respondent Company to discriminate against Olsen and White, and thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act 24 Although, as pointed out by the Trial Examiner, the Unions did not communicate with the Company with respect to Olsen's application for employment, and they were not even consulted with regard to White's employment application, we cannot adopt the Trial Examiner's conclusion that the Company, in discriminating against Olsen and White, acted "entirely on its own account." 25 The Respondents' 1948 contract, as we have found, provided that the Company hire only through, or subject to clearance by, the Unions, clearance being conditioned upon union membership. The Unions, by becoming parties to the 1948 contract, became jointly responsible with the Company for establishing this discriminatory hiring policy. In discriminating against Olsen, by conditioning his employment on clearance by the Unions, and against White, by refusing to consider him as an applicant for employment because he was not a member of the Unions and because he was a member of the I. A. M., the Company was giving effect to the unlawful hiring provisions of its contract with the Unions. The fact that the Unions did not participate to the fullest extent possible in the events surrounding the discrimina- tion against Olsen 26 and White does not exculpate them. As the 23 As stated above, we deem it immaterial that there may have been no job available for White at that time , as the Company discriminated against White by refusing to accept his employment application , thereby precluding him from even being considered for employment should a vacancy arise. Arthur G. McKee and Company, footnote 19, supra; Swinerton and Walberg Company, et al., footnote 19, supra. 34 We find no merit in the Unions' contention that, because of the difference In language between Section 8 (a) (3), on the one hand, and Section 8 (b) (2) and 8 (b) (1) (A), on the other, the latter provisions , unlike Section 8 (a) (3), were not intended to apply to applicants for employment , such as Olsen and White. Although it is true that Section S (b) (2) and 8 (b) (1) (A) describe the violation in terms of its impact upon "employees" or an "employee," whereas Section 8 (a) (3) speaks of "discrimination in regard to hire or tenure of employment or any term or condition of employment," to attach the special significance to these differences which the Unions urge would lead to an unreasonable result plainly at variance with the policies of the Act as a whole. 21 The Trial Examiner found further that, as the Unions' actions with respect to Olsen were in accordance with their "constitutions , regulations, and orderly procedure," they were not violative of the Act. With respect to White, he concluded that, as White was not, and never had been, a member of the Carpenters, Respondent Local 184, was under no obligation to issue a clearance to him and that its refusal to clear White was therefore not in violation of the Act. We cannot adopt these conclusions . Although the proviso to Section 8 (b) (1) (A) of the Act preserves the right of a union to prescribe its own rules with respect to the "acquisition or retention of membership therein ," it does not excuse unlawful hiring practices made pursuant to union regulations . Consolidated Western Steel Corporation, footnote 21, supra. '3 We find, contrary to the . Trial Examiner , that the Respondent Unions did refuse to, clear Olsen. UTAH CONSTRUCTION CO. 207 .Board recently held in the Childs Company case,27 "once such [an unlawful] contract has resulted in actual discrimination," the Unions, by executing and enforcing the contract, "must be deemed to have caused such discrimination." Accordingly, we conclude that the Respondent Unions, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, caused the Re- spondent Company to discriminate against Olsen and White in viola- tion of Section 8 (a) (3), even though no representative of the Unions specifically asked the Company to refrain from hiring Olsen or White 28 7. The Trial Examiner found that the Company independently violated Section 8 (a) (1) of the Act by its interrogation of Olsen and White and by "other remarks and actions . . . sounding of coercion." We agree with the Trial Examiner's ultimate conclusions in this connection, and base our agreement on the following specific acts and statements of the Company's supervisors, which we find to be violative of Section 8 (a) (1) : (a) Interrogation of Olsen and White with respect to their union affiliations by Assistant Construction Superintendent Jeffries, Construction Superintendent Ryan, and Per- sonnel Director McAdams; (b) Jeffries' statement to Olsen and White that all hiring was being done through the Unions; (c) statements made by Ryan and McAdams to Olsen and White to the effect that clearance by the Unions was a prerequisite to employment; 29 and (d) McAdams' statement to White that he had better not show his I. A. M. book around if he wanted to get a job at the project. The Remedy Having found that the Respondent Company and the Respondent Unions have engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and to take affirmative action necessary to effectuate the policies of the Act. We have found that the Company, on May 2, 1949, discriminated against John A. Olsen and Wendell Weston White in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Unions caused the Company to do so in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. It is doubtful, however, whether positions sub- stantially equivalent to those discriminatorily denied Olsen and White are still available, as it appears that work on the Garfield project may have been completed. We shall therefore order the Company to offer Olsen and White employment in positions substantially equiva- lent to those discriminatorily denied them on May 2, 1949, without 27 Footnote 13, supra. 21 Consolidated Western Steel Corporation , footnote 21; supra. 2 'The statements in (b) and ( c), interpreted in the light of the Respondents' unlawful contract, clearly implied that hiring was conditioned on membership in the Unions. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to their seniority or other rights and privileges, only in the event that such positions are still available on the Garfield project. We shall also o:-der the Respondent Company and the Respondent Unions, jointly and severally, to make Olsen and White whole for any loss of pay suffered as a result of the discrimination against them. In accordance with the formula promulgated in F. W. Woolworth Company, 30 and for the reasons stated therein, we shall order that the loss of pay suffered by Olsen and White be computed on the basis of each separate. calendar quarter or portion thereof during the period from the date of the discriminatory refusal to employ them 31 to the date on which their employment normally would have been terminated, absent discrimination'32 or, if the Garfield project is still in existence, to the date of a proper offer of employment. The quar- terly 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 Olsen and White normally would have earned as wages during each such quarter or portion thereof, their respective net earnings, if any, in other em- ployment during the same period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall further order, in accordance with the Woolworth decision,33 that the Company, upon request, make available to the Board and its agents all records pertinent to an analysis of the amounts of back pay due. As the Trial Examiner did not find that the Respondents discrimi- nated against White, the period from the date of the Intermediate Report to the date of the Order herein shall, in accordance with our usual practice, be excluded in computing the amount of back pay awarded to White.34 With respect to Olsen, however, the Trial Ex- aminer found that only the Respondent Company discriminated against him, whereas we have found that both the Respondent Com- pany and the Respondent Unions participated in such discrimination. The question therefore arises as to how to assess the liability for back pay accruing to, Olsen during the period from the date of the Inter- mediate Report to the date of the Order herein. It is clear, under the present circumstances, that the Trial Examiner's failure to find, as we have, that the Unions caused the Company to discriminate against Olsen deprived them of the opportunity, which they would otherwise have had, and which the Respondent Company did have, of termi- s0 90 NLRB 289. "In the event that no job was available for white on May 2, 1949, the date of the discrimination against him , back pay will accrue only from, the date on which such a. job became available . Swinerton anii lValberg Company, et at., footnote 19, supra. 12 Swjnerton and Wadberg Company, et al., footnote 19, supra. Footnote 30, supra. Cbitds Company, footnote 13. supra. UTAH CONSTRUCTION CO. 209 hating their back-pay liability during this period. Therefore, we believe that the policies of the Act will best be effected by ordering the Company to assume full liability for the back pay accruing to Olsen during the period from the date of the Intermediate Report to the date of the Order herein. With this exception, we shall hold the Company and the Unions jointly and severally liable for the back pay awarded to Olsen and White.35 Having found that the Respondents' 1948 and 1949 contracts con- tained unlawful hiring provisions, in violation of Section 8 (a) (1), 8 (a) (3), and 8 (b) (2) of the Act, the Trial Examiner ordered that the Respondent Company cease giving effect to its entire contracts with the Unions or to any other contract entered into with the Unions until the Unions had been certified by the Board. The Trial Examiner further ordered that the Company withdraw and withhold recognition from the Unions until they had been certified by the Board. How- ever, as no violation of Section 8 (a) (2) of the Act has been alleged or found, we shall limit our order in this respect to requiring that the parties cease giving effect to the unlawful hiring provisions of their collective bargaining agreements and refrain from executing agreements in the future containing union-security provisions except as authorized by the Act.36 We shall not order the Company to with- draw or withhold recognition from the Unions. The Trial Examiner recommended that the Respondents cease and desist from engaging in the unfair labor practices which he found to have been committed. The Respondents' illegal activities, how- ever, go to the very heart of the Act and indicate a purpose to defeat the Company's employees in the exercise of their rights under the Act. We are convinced that the unfair labor practices which we found to have been committed by the Respondents are potentially related to other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the Respondents' conduct in the past. The preventive purpose of the Act will be thwarted unless our order is made coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act and thus effectuate the policies of 35 In the event that jobs are still available on the Garfield project at the time of the issuance of this Decision and Order , either or both of the Unions may terminate its liability for further accrual of back pay to Olsen and White by notifying the Company. in writing, that it has no objection to Olsen's or White's employment. The Unions shall not thereafter be liable for any back pay accruin g after 5 days from the giving of such notice. Absent such notification by either or both of the Unions , one or both of the Unions shall remain jointly and severally liable with the Company for all back pay that nray accrue to Olsen and White until the Company complies with our order to offer them employment or until the Garfield project is completed, whichever occurs first . P:nkerton's National Detective Agency, Inc., 90 NLRB 205 : Childs Company, footnote 13, supra. 36Member Reynolds , however , is of the opinion that the appropriate remedy requires that collective bargaining agreements containing unlawful provisions be set aside in their entirety. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, we shall order the Respondents to cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act 37 Order Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: I. The Respondent, Utah Construction Co., Ogden, Utah, its officers, agents, successors, and assigns, shall: (a) Cease and desist from : (1) Discouraging membership in International Association of Ma- chinists, or in any other labor organization of its employees or appli- cants for employment, or encouraging membership in United Brother- hood of Carpenters and Joiners of America, Local No. 1498 or Local No. 184, AFL, or in any other labor organization of its employees or applicants for employment, by refusing to hire or to consider for employment any qualified applicant for employment, or by discrimi- nating in any other manner in regard to hire or tenure of employment or any term or condition of employment. . (2) Performing or giving effect to the unlawful hiring provisions of its 1948 and 1949 collective bargaining agreements with United Brotherhood of Carpenters and Joiners of America, Local No. 1498 and Local No. 184, AFL, or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any superseding agreements with said Unions, or either of them, containing union- security provisions except as authorized by the proviso to Section 8 (a) (3) of the Act. (3) Interrogating its employees or applicants for employment con- cerning their union affiliations; informing applicants for employment that it will hire only through, or subject to clearance by, United Brotherhood of Carpenters and Joiners of America, Local No. 1498 and Local No. 184, AFL, or either of said Unions, clearance being conditioned upon membership in said Unions; and warning applicants for employment that they will not be considered for employment if they are members of International Association of Machinists. (4) In any other manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists, or any other labor organization to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such 87 May Department Stores v. N. L. R. B., 326 U. S. 376. UTAH CONSTRUCTION CO. 211 right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) .(3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (1) Offer to John A. Olsen and Wendell Weston White immediate employment in positions substantially equivalent to those discrimi- natorily denied them on May 2, 1949, if such positions are in existence at its project at Garfield, Utah, at the time of the issuance of this Decision and Order, without prejudice to their seniority or other rights and privileges. (2) Upon request, make available to the National Labor Relations, Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to an analysis of the amounts of back pay due under the terms of this Order. (3) Post at all projects now being operated by its Salt Lake City, Utah district office,38 copies of the notice attached hereto and marked "Appendix A." 39 Copies of said notice, to be furnished by the Re- gional Director for the Twentieth Region, shall, after being duly signed by the Respondent Company's representative, be posted by the Respondent Company immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by - the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. H. The Respondents, United Brotherhood of Carpenters and Joiners of America, Local 1498, AFL, Provo, Utah, and United Brotherhood of Carpenters and Joiners of America, Local No. 184, AFL, Salt Lake City, Utah, and each of them, and their officers, representatives, and agents, shall: ae Although no exceptions have been taken to the Trial Examiner 's recommendation that the Respondent Company post compliance notices and at its Garfield project, we believe. In view of the intermittent nature of the Company 's operations and the possibility that its Garfield project may already have been completed, that the policies of the Act will best be effectuated by requiring the Company to post notices at all presently operating projects In the area in which the unfair labor practices were committed , rather than by limiting this requirement to the Garfield project. Swinerton and Walberg Company, et at., footnote 19, supra. a' In the event that this Order is enforced by a 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." 961974-52-vol. 95-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Cease and desist from : (1) Causing or attempting to cause Utah Construction Co., its officers, agents, successors, or -assigns, to discriminate in any manner against its employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (2) Performing or giving effect . to the unlawful hiring provisions of their 1948 and 1949 collective bargaining agreements with said Company, or entering into or enforcing any extension , renewal, modi- fication, or supplement thereof, or any superseding agreements corn- taining union-security provisions except as authorized by the proviso to Section 8 (a) (3) of the Act. (3) In any other manner restraining or coercing employees of, or applicants for employment with, Utah Construction Co., its successors or assigns, in the exercise of their right to engage in, or to refrain from engaging in, any or all of the concerted activities specified in Section 7 of the Act, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (1) Notify Utah Construction Co. that they have no objection to the hiring and employment on the Company's Garfield project of John A. Olsen, Wendell Weston White, or any other person without being hired through, or subject to clearance by, either or both of them. (2) Post at their business offices and meeting halls in Provo, Utah, and Salt Lake City, Utah, copies of the notice attached hereto and marked "Appendix B." 10 Copies of said notice , to be furnished by -the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent Unions' representatives , be posted by the Respondent Unions immediately upon receipt thereof and main- tained by them for sixty ( 60) consecutive days thereafter , in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent Unions to insure that said notices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Twentieth Region signed copies of the notice attached hereto as Appendix B, for posting, the Respondent Company willing, at the projects operated by the Re- spondent Company's Salt Lake City, Utah, district office, 41 in places where notices to employees are customarily posted. The notices shall be posted for a period of sixty (60) consecutive days . thereafter. Copies of said notice, to be furnished by the Regional. Director for 40 Ibid. 41 See footnote 38, supra. UTAH CONSTRUCTION CO. ' 213 the Twentieth Region, shall, after being duly signed as provided in paragraph II (b) (1) of this Order, be forthwith returned to the Regional Director for such posting. (4) Notify the Regional Director for the Twentieth Region, iir- writing, within ten (10) clays from the date of this Order, what steps; the Respondent Unions have taken to comply herewith. III. The Respondents, Utah Constru^tion Co., Ogden, Utah, its offi-- cers, agents, successors, and assigns, and United Brotherhood of Car- penters and Joiners of America, Local No. 1498 and Local No. 184, AFL, their officers, representatives, and agents, shall jointly and sev- erally, in the manner set forth in the section herein entitled, "The Remedy," make whole John A. Olsen and Wendell Weston White for any loss of pay each of them may have suffered as a result of the dis- crimination against him. IT IS FURTHER ORDERED that. the complaint, insofar as it alleges vio- lations of the Act different from those found in this Decision and Order, be, and it hereby is, dismissed. M7,IIBFA MURDoclc took no part in the consideration of the above Decision and Order. Appendix A NOTICE To ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 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 our employees and appli- cants for employment that : WE WILL NOT discourage membership in INTERNATIONAL ASSO- CIATION OF MACHINISTS, or in any other labor organization of our employees or applicants for employment, or encourage member- ship in UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AatERICA, LOCAL No. 1498 or LOCAL No. 184, AFL, or in any other labor organization of our employees or applicants for employ- ment, by refusing to hire or to consider for employment any qualified applicant for employment or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT perform or give effect to the unlawful hiring provisions of our 1948 and 1949 collective bargaining agreements, with UNITED BROTHERIOOD OF CARPENTERS AND JOINERS Or AMER- ICA, LOCAL No. 1498 and LOCAL No. 184, AFL, or enter into or enforce any extension, renewal, modification, or supplement thereof, or any superseding agreements with said unions, oi• either of them, containing union-security provisions except as author- ized by the proviso to Section 8 (a.) (3) of the Act.. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees or applicants for em- ployment concerning their union affiliations ; inform applicants for employment that we will hire only through, or subject to clear- ance by, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1498 and LOCAL No. 184, AFL, or either of said unions, where such clearance is conditioned upon member- ship in said unions; or warn, applicants for employment that they will not be considered for employment if they are members Of INTERNATIONAL ASSOCIATION OF MACHINISTS. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exer- cise of their right to self-organization, to form labor organiza- tions, to join or assist INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to John A. Olsen and Wendell Weston White immediate employment in positions substantially equivalent to those denied them on May 9, 1949, if such positions are available at our Garfield,, Utah, project at the time of the issuance of the National Labor Relations Board's Decision and Order, without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of pay they may have suf- fered as a result of our discrimination against them. All our employees are free to become, remain, or to refrain from be- coming or remaining, members of the above-named unions or any other labor organization, except to the extent that this right may be affected by an agreement in corrformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of em- ployment or any term or condition of employment against any em- ployee or applicant for employment because of membership in or nonmembership in any such labor organization. UTAH CONSTRUCTION CO., Employer. By ----------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof,. and must not be altered, defaced, or covered by any other material. UTAH CONSTRUCTION CO. Appendix B 215 NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1498 AND LOCAL No. 184, AFL, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT WITH, UTAH CONSTRUCTION CO. 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 UTAH CONSTRUCTION CO., its officers, agents, successors, or assigns, to discriminate in any manner against its employees or applicants for employment in violation of Sectioh 8 (a) (3) of the Act. WE WILL NOT perform or give effect to the unlawful hiring provisions of our 1948 and 1949 collective bargaining agree- ments with UTAH CONSTRUCTION Co., or enter into or enforce any extension, renewal, modification, or supplement thereof, or any superceding agreements with said company containing. union- security provisions except as authorized by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with, UTAH CONSTRUCTION CO., its successors or assigns, in the exercise of their right to self- organization, to form labor organizations, to join or assist IN- TERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the Act. WE WILL notify UTAH CONSTRUCTION Co. that we have no ob- jection to the hiring or employment of John A. Olsen, Wendell Weston White, or any other person without being hired through, or subject to clearance by, us. 11 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole John A. Olsen and Wendell Weston White for any loss of pay they may have suffered as a result of the discrimination against them. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1498, AFL, Labor Organization. By --------------------------------------------------------- (Representative ) (Title) UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 184, AFL, Labor Organization. By ------------------------------------------------ -------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE These cases arose upon separate charges filed on September 28, 1049, by Inter- national Association of Machinists, District Lodge No. 114, Local Lodge No. 1066 against Utah Construction Company and United Brotherhood of Carpenters and -Joiners of America, Local No. 1498 and Local No. 184, AFL, respectively.' Upon -the basis of such charges, the General Counsel of the National Labor Relations Board, acting through the Regional Director of the Twentieth Region (San Francisco, California), issued an order on June 29, 1950, consolidating the two cases for hearing and on the same day, filed a complaint against the named Com- pany and the named Unions. This alleged that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning -of Section 8 (a) (1) and (3) of the Act; that the Unions had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act; and that all such unfair labor practices were in violation of Section 2 (6) and (7) of the Act. Copies of the consolidated complaint, and of the charges upon which it was based, together with notice of hearing thereon, were served upon the Respondent Company and the Respondent Unions. The consolidated complaint alleged in substance that: (1) The Respondent Company and the Respondent Unions' have entered into and have enforced col- lective bargaining agreements between Associated General Contractors of Amer- ica, Intermountain Branch, and Basic Building Trades affiliated with AFL, which contain provisions relating to the hiring of men in the construction of a 1 References in this Report will be : The General Counsel and his representative at the hearing, as the General Counsel: Utah Construction Company, as the Respondent Company or the Company ; United Brotherhood of Carpenters and Joiners of America, AFL, as the Respondent Union or the Carpenters ; Local 1498, as Local .1498 or the Provo Local; Local 184, as Local 184 or the Salt Lake City Local; International Associa- tion of Machinists, District Lodge No. 114, Local Lodge No. 1066 as the Machinists or IAM ; the National Labor Relations Board, as the Board; the National Labor Relations Act, as amended by the Labor Management Relations Act, as the Act (61 Stat. 136) Kennecott Copper Corporation, as Kennecott. 11 UTAH CONSTRUCTION CO. 217 copl:er refinery for the Kennecott Copper Company' at Garfield, Utah, in which the Company was engaged; (2) the Respondent Company "has required that persons to be employed by said Company should be cleared by Respondent Unions as a condition of obtaining such employment" ; (3) on May 2, 1.949, the Respond- ent Company questioned its employees concerning their union affiliations, warned its.employees or applicants for employment they would not be hired if they were members of IAM, and instructed such applicants they must be cleared through the Respondent Unions; (4) on May 2, 1949, the Respondent Company agreed to hire John A. Olsen and Weston W. White if they were cleared by the Respondent Unions, but later refused to employ them because of their membership in IAM and because they were not cleared by the Respondent Unions; and (5) such actions by the Company constitute unfair labor practices under Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act. The complaint further alleged that the Respondent Unions: (1) Have insisted that the Respondent Company "require that persons to be employed by Respondent Company at its [Garfield] construction site . . . be cleared by said Respondent Unions before such persons could be employed" ; (2) refused to clear John A. Olsen and Weston W. White to go to work for the Respondent Company "because of their membership in [IAM] and because of their non-membership in good standing in Respondents Unions," all of which caused the Respondent Company to discriminate against employees in violation of Section 8 (a) (3) and (1) and constituted an unfair labor practice by the Respondent Unions in violation of Section 8 (b) (2) and Section 2 (6) and (7) of the Act; and (3) that such actions by the Respondent Unions "re- strained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act," which constituted an unfair labor practice contravening Section 8 (b) (1) (A) of the Act. The complaint further alleged that the Respondent Company was engaged in commerce within the meaning of the Act and that the foregoing unfair labor practices of the Respondents have a close, intimate, and substantial relation to commerce among the States and tend to burden and obstruct such commerce. No allegations are contained in the com- plaint that the Respondent Company violated Section 8 (a) (2) nor that a representation election under Section 9 (e) has ever been held. To the consolidated complaint the Respondent Unions filed a motion to dismiss the complaint and the Respondent Company filed a document entitled "Inter- rogatories" and a motion to dismiss. On August 1, 1950, Trial Examiner Robert L. Piper denied such motions and interrogatories. The separate answer of the Respondent Unions, denied, except the corporate identity of the Company, all the allegations of the complaint, either directly or upon the ground of lack of information sufficient to form a belief. It also set up, as affirmative defense, that at the times mentioned in the complaint Olsen and White were employees of the Union Pacific Railroad. The Respondent Company, in its separate answer, denied specifically and gen- erally all the allegations of the complaint, except that it was a party to the collective bargaining agreements mentioned therein. As affirmative defense the Company alleged that the Machinists had attempted to force the Company to assign millwright work to members of the Machinists Union in violation of Section 8 (b) (4) (D) of the Act; that the Machinists had attempted to require appli- cants for employment on the Garfield project to be first cleared by the Machinists ; that the Machinists had interfered with, restrained, and coerced the Company's employees by attempting to compel the Company to recognize its members ; and The complaint used the name "Kennecott Copper Company" and it so appeared in the evidence at the hearing . Actually, from the records of the Board in numerous .proceedings , the correct title is "Kennecott Copper Corporation ." The last name will be employed in this Report. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at all times mentioned in the complaint John A. Olsen was an employee of the Union Pacific Railroad subject to the Railway Labor Act and not the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in Salt Lake City, Utah, from August 24 through September 5, 1950, before Hamilton Gardner, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. At the beginning of the hearing the Trial Examiner permitted the Respondent Company, on motion, to amend its answer by changing `.`admit" to "deny".in paragraphs 1 and 2. This related to the matter of interstate commerce. Similarly the Respondent Unions were granted leave to amend their answer in the next to last line by inserting the name of Weston White. This had to do with Olsen's and White's employ- ment with the Union Pacific Railroad. The General Counsel was also permitted to amend the figures in paragraph I (b) of the complaint, relating to commerce, to conform with the testimony of witness George H. Putnam. At the conclusion of the General Counsel's case-in-chief the Company and the Unions made and argued separate motions to dismiss the complaint. The Trial Examiner denied the motions. The Respondent Unions also made and argued a motion to dismiss the complaint as to John A. Olsen on the ground he had been employed by the Union Pacific Railroad on May 2, 1949, and consequently did not come within the Act. This motion the Trial Examiner took under advisement and it will be decided as appears later in this Report. Upon the conclusion of the hearing the Respondents made separate motions to dismiss the complaint, which the Trial Examiner held in abeyance to be decided in this Report. Finally the Trial Examiner granted a motion by the General Counsel to amend the pleadings to conform to the proof as to such minor matters as names and dates. At the hearing the General. Counsel and both Respondents were represented by counsel and the Machinists by an authorized representative, all of whom participated in the proceedings. Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The parties were advised of their right to present oral arguments at the opening and closing of the hearing. All counsel made lengthy oral arguments at the end of the hearing. They were also advised of their right to submit proposed findings of fact, conclusions of law, and briefs. All of the Respondents have filed briefs which have been carefully considered. Nothing was received from the General Counsel. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT COMPANY Utah Construction Company is a corporation of the State of Utah with its corporate business office at Ogden, Weber County, therein. For upwards of 50 years, according to George H. Putnam, one of its vice presidents. and district manager at Salt Lake City, Utah, who testified for the General Counsel, it has been engaged in the business of "general contracting including heavy construe- tion." In additional to the corporate office at Ogden, where company records are ultimately maintained, the Company operates district offices in Sari Fran- cisco, California, and in Salt Lake City, Utah. Of the officers of the Company its president and two vice presidents are stationed at San Francisco ; one vice pres- ident and secretary at Ogden ; and George H. Putnam, vice president and district manager, at Salt Lake City. The San Francisco and Salt Lake City offices are operative establishments which carry on and control the various construction projects in the western United States and foreign countries. The jurisdiction of UTAH CONSTRUCTION CO . 219 the Salt Lake City district includes the State of Utah. The Company also owns- a subsidiary corporation in the Republic of Mexico . At various times it has affiliated with other construction concerns , by incorporation or otherwise, to handle projects of major size, e. g., the Bonneville Dam on the Columbia River and the Boulder Dam in the State of Nevada. The Company also maintains an office on each project during the construction period. There the local records are kept, such as payrolls and personnel data. Eventually these records, at least in condensed form, find their way to the cor- porate office at Ogden. Each project, under its jurisdiction district manager, sets up a supervisory and administrative force, consisting ordinarily of a project manager, superintendent , assistant superintendents , foremen, and personnel director. Such was the situation at Garfield, Salt Lake County, Utah, where the Company had a contract to build an electrolytic copper refinery for the Ken- necott Copper Corporation. It is with this project that the present case is con- cerned. Similar job offices were maintained by the Company in 1949 at the Geneva Steel Company, Provo, Utah, at Leadville, Colorado, at Rapid City, South Dakota, and at the Davis Dam in Nevada, the last two being under the direction of the San Francisco office. According to Putnam, who was the only witness to testify about the commerce phase of the case, he had authority, as manager of the Salt Lake districts"to negotiate for and develop contracts and purchase equipment and materials and commit the company to contractual obligations of various natures and kinds." He had "exclusive authority to bid for the State of Utah" which could not be interfered with by any other office of the Company. He possessed ultimate authority in hiring and firing. But he was directly responsible to the board of directors . The Kennecott Copper Corporation job was bid and handled in this manner. In addition to the job at Garfield , Utah, for Kennecott, Putnam testified the Salt Lake City district in 1949 dug, screened , and sold slag to the Union Pacific Railroad for approximately $200,000 and 50 carloads to the Denver & Rio Grande Railroad in 1950, to be used as ballast. It also mined iron ore in Iron County, Utah, which it sold to the Kaiser Company at Fontana, California, in an unspecified amount. Similarly , it mined ore for the Colorado Fuel'& Iron Company at Leadville, Colorado, which, however, it merely shipped and did not sell. Furthermore it built some housing for the Kennecott Copper Corporation in Salt Lake County, for the United States Steel Corporation at Dragerton, for the Kaiser Company at Sunnyside ; constructed a coal tipple for the Utah Fuel Company in Carbon County ; and did some grading for Standard Oil of Califor- nia at its oil refinery in North Salt Lake-all in Utah. The amounts involved do not appear in the record. No evidence was presented specifying the purchases and expenditures of the Utah Construction Company in its entirety for 1949. Such proof was limited to the Salt Lake City district.. On the Kennecott project in the calendar year 1949 the Respondent Company made purchases in the amount of $1,732,392 .92. The portion of these purchases received from outside the State of Utah was $270,203 .28, although Putnam testified that an unspecified part of the latter amount was ordered through local brokers. Purchases within Utah totaled $1,462,189.64 and consisted largely of locally produced sand , gravel, cement; and brick. Hardware, petroleum prod- ucts, and lumber, most of which was produced in other States, was bought from dealers in Salt Lake City. The steel used on the project was furnished to the extent of 90 percent by Kennecott , but not the Respondent Company, and was obtained from the American Bridge Company , outside Utah. For some small fabricating jobs the Company bought steel from the Geneva, Utah, steel plant, a 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsidiary of the United States Steel Corporation. The Company also installed large quantities of copper bars, and electric motors and generators, but these were supplied entirely by Kennecott, although made outside of Utah.3 The total volume of sales of the. Company's Salt Lake district office in 1949 was approximately $12,000,000. This represents what it received for its serv- ices, its materials, and the use of its machinery and equipment under various contracts. Of this amount, Putnam estimated 50 percent was derived from sources outside Utah. The figures include the Garfield job and the work done for the Respondent Company, the Union Pacific Railroad, Kaiser Company, Colorado Fuel & Iron Company, United States Steel Corporation, and others detailed above. The Respondent Company carries on the heavy construction business. It is important in this type of case to determine the characters of business done by the concern for which the building is erected. Consequently the question must necessarily be asked : Is the Kennecott Copper Corporation engaged in commerce within the meaning of the Act? The record itself is somewhat meager on this point. Putnam testified that he knew the Utah Copper Company mine at Bingham, Utah, owned and operated by Kennecott, is one of the largest in the world and that the latter company ships copper throughout the United States and to foreign countries. But the question has already been settled by decisions of the Board. Thirteen cases have been found in which the Board held that Kennecott was engaged 'in business in accordance with provisions of the Act and assumed jurisdiction. The latest one to deal with Kennecott Copper Corporation, Utah Copper Division, was decided in February 1949.' Others deal with Kennecott's divisions in Arizona,` New Mexico, and Nevada. At an earlier period, when Kennecott operated its Utah division as the Utah Copper Company, the Board assumed jurisdiction over that concern at least 17 times, the latest probably being Utah Copper Company and Kennecott Copper Cor- poration and International Union of Mine, Mill and Smelter Workers etc.6 It is therefore found that Kennecott Copper Corporation is engaged in commerce within the meaning of the Act. The same situation applies as to several other concerns for which the Re- spondent Company did business in 1949. Thus the Board has exercised juris- diction over the Kaiser Company, Inc. (Iron and Steel Division)' in matters pertaining to its coal mine in Utah and its steel mill at Fontana, California, which are involved in the instant case. Again, Standard Oil Company of Cali- forn.ia, for which the Company did some grading work at North Salt Lake, has been held to come 'under the Act.' Similarly, Colorado Fuel d Iron Company on whose property at Leadville, Colorado, the Company mined and shipped iron ore has been held to come within the purview of the Acts Therefore I find that each of these three concerns is engaged in commerce as defined in the Act. The Board has recently handed down a number of decisions which are helpful in deciding the jurisdiction phase of this case. In Stanislaus Implement and 31n an early stage of the hearing Putnam made an unofficial estimate that the total purchases for the Garfield job were about $2,900,000, of which approximately $250,000 came from outside Utah. The figures cited above were presented near the close of the hearing from a memorandum made by the Company's district office manager, which he compiled directly from the books. 4 81 NLRB 957. 5 One of the latest Arizona cases is Kennecott Copper Corporation, Ray Mines Division, Hayden Operations, 84 NLRB 836. 6 57 NLRB 641. See preceding decisions in the same case : 56 NLRB 35 and 54 NLRB 1151. 7 73 NLRB 931. 3 82 NLRB 108; 79 NLRB 1466 and numerous earlier cases. .67 NLRB 100; 63 NLRB 1049. UTAH CONSTRUCTION CO. 221- Hardware Company, Limited," it held to be in interstate commerce a Cali- fornia concern which made retail sales of hardware, machinery, implements and parts, and fabricated farm machinery and equipment. Its over-all purchases, amounted to $600,000 much of which was produced in other States. Its sales approximated.$1,300,000 of which 98 percent was to customers in California. The Board sets up a dividing line of $25,000 in these respects : Without considering the amount and character of the-inflow, we further find, in view of the fact that the Employer's annual shipment of goods to points outside the State amounted in. value to more than $25,000, that it will effectuate the policies of the Act for this Board to assert jurisdiction. In future cases we will exercise jurisdiction over employers which annually ship goods valued at $25,000 or more out of a State. Along the same line, as applicable at least to some extent to this case, are Hollow Tree Lumber Company" and Dorm's House of Miracles, Ine.i2 The amounts of inflow and outflow here far exceed those in the cited cases. On the record it is practically admitted that Utah Construction Company as such is engaged in commerce under the Act. On redirect examination Putnam, vice president and manager of the Salt Lake City district, in answer to ques- tions with respect to intercompany relations, stated : "Well, of course, there's only the one Utah Construction Company." In oral argument, on his motion to dismiss the complaint for lack of jurisdiction, counsel for the Company conceded: We have not denied that the Utah Construction Company as such is engaged in business in various states in the Union. We have no denial of the points which the General Counsel emphasizes at great length that we are engaged in construction projects in many of the states of the west... . The undisputed evidence shows that the Company, during the period here involved, carried on its activities in Utah, Colorado, South Dakota, Nevada, Cali- fornia, Oregon, Washington, and in the Republic of Mexico. Counsel for the Company, however, both in oral argument and in their briefs, insist that consideration of jurisdiction be limited to the Salt Lake City district and should not include operations of the Company outside Utah. They argue that the district was "autonomous," self-sufficient, and independent. Putnam's testimony has heretofore been set out. While he had complete authority as to bidding and performing contracts, hiring and firing, and personnel, yet he was responsible to the directors for his management of affairs. Indeed he was ap- pointed by the directors originally after years of service for the Company out- side the Salt Lake City district. Inferentially he could be removed by the directors whose jurisdiction extended over the "one Company" wherever it func- tioned. The over-all corporate organization thus prevailed in Utah as elsewhere. Counsel cite N. L. R. B. v. Shawnee Milling Co." in support of their argument. This concerned a plant at Pauls Valley, Oklahoma, which made "chops, hen feed, dairy and hog feed" only. The plant was entirely owned by Shawnee Milling Company, which produced flour at Shawnee. The manager at Pauls Valley had "complete charge of the activities of that plant," subject to a general supervision by the Shawnee officials. In 1947 the Pauls Valley plant made all its purchases in Oklahoma, except 1 percent, although in normal years no such exception obtained. All sales were made within the State. The circuit court of 70 91 NLRB 618. 11 91 NLRB 635. 32 91 NLRB 632. 33184 F. 2d 57 ( C. A. 10). (Aug. 4 , 1950). 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appeals held the Board lacked jurisdiction. But a comparison of the facts of that case with those at bar immediately discloses their dissimilarity. Here the Respondent Company engaged in business in many States and even the Salt Lake City district operated at least in Utah, Colorado, and California, and with many concerns engaged in interstate commerce. Moreover, the. amounts of inflow and outflow in the instant proceeding vastly exceed those in the Shawnee case. The case of Sperry, Regional Director, etc. v. Denver Bldg. & Const. Trades Council et al.,' also cited by counsel, throws little light on the present problem. That involved a petition for an injunction filed by the Regional Director, under Section 10 (1) of the Act, in the United States District Court of Colorado. Aside from the question whether the decision is binding in this proceeding, it has little resemblance to what must be determined here under the present facts. Actually the district court, in denying the petition for injunctive relief, appeared to rest more on the local nature of the labor troubles than upon any question of inflow and outflow and other interstate data. In any event this matter has been clearly settled by the Board in its recent decision of The Borden Company, Southern Ilivision.1° That case concerned the Houston, Texas, plant of The Borden Company, an operator in milk products throughout the United States. At Houston purchases of supplies of $4,000,000 were effected of which $120,000 were shipped from outside. "All sales were made locally." [Emphasis supplied.] The Board in assuming jurisdiction, stated : Having recently reexamined Board policy covering the exercise of juris- diction, we continue to believe that when a plant is owned and operated by a company which is a multi-state enterprise, we should exercise our discretion in favor of taking jurisdiction, even though management is en- trusted to local officials and the particular plant may sell its entire product within the State where it is located. In a footnote the Board remarks that N. L. R. B. v. Shawnee Milling Co., dis- cussed above, is "distinguishable." There remains the somewhat unique contention of counsel that, because Kenne- cott did not utilize the plant while it Was under construction by the Company, it could not therefore be in interstate commerce. If such a doctrine were applied, no construction or building-concern would ever be amenable to the Act. I reject this argument. Upon the facts found above, and for the reasons stated , I find that the ' Re- spondent Company was engaged in commerce within the meaning of the Act 1. II. THE LABOR ORGANIZATIONS INVOLVED It was stipulated in open hearing by counsel for all parties that International Association of Machinists, District Lodge No. 114, Local Lodge No. 1066, is a labor organization within the meaning of Section 2 (5) of the Act. It is so found. As to United Brotherhood of Carpenters and Joiners of America, Local No. 1498 and Local No. 184, AFL, undisputed documentary and testimonial proof 14 77 F. Supp. 321. 16 91 NLRB 628. 16 The Trial Examiner has caused a thorough search to be made in all applicable facilities at the Board ' s Washington office and no instance was found in which Utah Construction Company has ever been a party in any proceeding before the Board. For • that reason he has felt constrained to go into nrore than ordinary detail- on the issue of jurisdiction. UTAH CONSTRUCTION CO. 223 was offered and received of their constitution and bylaws, organization, pur- poses, functions, and activities. Based on such proof, I find they are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES INVOLVED A. The over-all background Some of the important facts in this matter are not in dispute. They will be set forth at this point before entering into the controverted issues. 1. Lack of election under Section 9 (e) It was stipulated by counsel for all parties in open hearing that no election had been held among the Company's employees at the Garfield project under Section 9 (e) of the Act nor have the Respondent Unions been certified by the- Board as the collective bargaining agent of such employees. The stipulation applied to the agreements of June 1, 1948, and August 12, 1949, which are in evidence and will be discussed later. I so find. 2. The collective bargaining agreements One important element in these proceedings lies in two collective bargaining agreements which are on file as exhibits. The first bears date of June 1, 1948, and was in effect when the events occurred which are the subject matter of this action. It is entitled : "Labor Agreement-Building Heavy, Highway and Engi- neering Construction-Between Associated General Contractors of America, Intermountain Branch and Basic Building Trades, Affiliated with A. F. of L." The agreement covers "general construction work in the State of Utah." It was signed on the one part by the Associated General Contractors and by 75 member contractors, including the Respondent Company, and on the other part by 6 crafts unions affiliated with the American Federation of Labor, including the Car- penters. Part of the preamble reads : WHEREAS, the CONTRACTORS are employing members of the various unions, parties to this agreement ; and WHEREAS, the CONTRACTORS desire to procure and UrIONS agree to furnish employees for the performance of said work in the State of Utah in sufficient numbers, and with sufficient, skill to insure continuity of work; and That part relevant here sets forth : Article III Hiring of men A. The CONTRACTOR shall have entire freedom of selectivity in hiring and may discharge any employee, provided there shall be no discrimination on the part of the CONTRACTOR against any workman, nor shall any workman be discharged by reason of union activity not interfering with the proper performance of his work. B. In order to secure qualified and competent workmen, CONTRACTOR agrees to hire workmen who have previously been employed, by the CONTRACTOR or other employees in the classifications covered by this agree- ment regardless of union membership. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The UNIONS agree to assist the CONTRACTOR in the procurement of competent workmen by maintaining at their offices lists of workmen who are qualified and competent and available for employment, which lists CONTRACTOR will refer prior to the procurement of workmen. UNIONS agree to furnish upon request the CONTRACTOR with competent workmen. Nothing herein contained shall deprive the CONTRACTORS from being the sole judge of the qualifications of workmen for employment. D. The UNIONS agree to promptly file the necessary petitions with the National Labor Relations Board to bring about the union authorization elections and the Associated General Contractors of America, Intermountain Branch, agrees to cooperate in obtaining and furnishing information neces- sary for said elections; the parties hereto agree to establish procedure for cooperation to facilitate said elections in conformity with the Labor-Man- agement Relations Act of 1947. E. Upon the National Labor Relations Board certifying to the fact that the employees covered by this agreement have authorized the respective UNIONS to enter into an agreement in their behalf requiring UNION mein- bership as a condition of employment all employes thus covered shall be required to become members of the respective UNION within the time pre- scribed by the Labor-Management Relations Act of 1947. The second agreement is dated August 12, 1949, thus antedating the events of May 2, 1949, to be discussed later. The corresponding employment paragraph states : Article III Hiring of Men WHEREAS existing labor relations practices in the construction industry in Utah are long established and have been effective for both employer and employee. WHEREAS the nature of employment is fluctuating and, intermittent in that employees move from job to job in varying numbers ; and, WHEREAS in the interest of maintaining harmonious relations in the in- dustry, it has been, and is, the established practice to encourage new employees to become members in the craft unions having established juris- diction over the work involved. Now THEREFORE the parties hereto agree as follows : A. In order to secure qualified workmen Contractor agrees to hire work- men who have previously been employed by the contractor or other employers in the classifications covered by the agreement. The unions agree to assist contractor in the procurement of such workmen and will furnish such men upon- request. Contractors will call on unions to furnish such workmen in the classifications herein contained. If a shortage of workmen exists or 'Union does not supply qualified workmen within a reasonable time upon request, Contractor may secure workmen from other sources. In such cases union will be notified of the procurement of such workmen through the facilities offered by the union. In all instances Contractor shall be the sole judge of the qualifications of workmen for employment. B. It is the intent of the parties to this Agreement that the hiring and employment of workmen shall not be in violation of the National Labor Relations Act as amended by the Labor-Management Relations Act of 1947. In the-event that said laws as pertaining to the hiring provisions of this paragraph are clarified or modified by action of the Congress or Court UTAH CONSTRUCTION CO. 225 of final jurisdiction either party to this agreement may, by serving thirty- day written notice upon the other party request renegotiation of the terms of this article to bring about conformity with such revisions of the laws. It was stipulated that this latter agreement was still in effect at the time .of the hearing. 3. The general nature of the Company's construction operations Substantial proof was offered by the Company of the peculiar nature of its construction operations and business, including the Kennecott project here under consideration. This was not controverted by the General Counsel. Chief wit- nesses on these matters were Putnam, district manager, and "Vic" Ryan, project superintendent. Putnam testified that construction of a building or plant, such as the Kennecott electrolytic unit, is a temporary rather than a permanent operation. Usually a definite time limit for completion of the building is set out in the contract. After the contractor has made its bid and it has been accepted and a contract executed, the contractor starts to build up his force of employees for the job. The original skeleton force consists of part of the supervisory force. Ryan testified that when the Garfield project started on October 17, 1948, the crew consisted of the project manager, himself and one office employee. McAdams was later added as personnel manager. Primarily it was McAdams' job to pro- cure properly qualified employees, although in the beginning lie was assisted by the Salt Lake City office. Sources of the employees for the project were various. First of all, it was sought to obtain all the experienced former em- ployees available. For the balance, contacts were made with the United States Employment Service and private employment agencies ; advertisements were placed in newspapers, as was clone in this instance; and the craft unions were called for lists of available, qualified men. The agreement between the Respondents governed this last named source of supply of workmen. As a result of this method of procurement both union and nonunion men were hired. Putnam and Ryan testified they knew some of the employees wore union badges and some had no union affiliations. Richard H. Hunt, business agent and treas- urer for the Carpenters Salt Lake City Local No. 184, corroborated this, although he further testified that when his Union learned of a nonunion man on the job it solicited his membership. Upon the gradual completion of the contract the men were laid off progressively. Putnam and Ryan further stated that the very nature of the business of con- structing a building, especially the time element, is such as to require the rapid mobilization of a working force. Consequently all available sources of material were tapped, as in the present case. Richard H. Hunt, business agent and treasurer of Carpenters Local Union No. 184, testified concerning the part his organization played in this process of procurement. He stated that it was his "duty, as Business Agent of Local 184, to deal with the contractors pursuant to that agreement" then in force. He continued: "We do everything possible to procure men. In the event that any contractor seeks employees, we try to find them for him. Our membership is required to take a clearance to the job." The Local Union does not "insist that the Utah Construction Company require that all its employees at the Kennecott job be cleared through [it] before they are employed." But Hunt further stated that he encouraged all emp'oyees on that project to join his Union. Local 184 at Salt Lake City acted as the central clearing house for locals in the surrounding cities, including Provo. For that purpose the outside locals supplied Local 184 lists of their members in good standing who were .226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD qualified in various classifications. Hunt stated that not all the workmen on .the Garfield project had been cleared by his Local Union, "but they did a large percentage." According to him the only insistence on clearance was applied to union members and not others. All this was corroborated by William G. ("Bill") Ryan, business representative of Provo Local Union 1498. . I credit the testimony of these witnesses and find these facts to be as stated by them. 4. Identity of persons involved To facilitate understanding this case, it is advisable to identify the principal ,persons involved. a. Respondent Company As already appears, George H. Putnam was vice president and manager of the Salt Lake City district. Vincent E. Ryan, sometimes called "Vic", acted as superintendent of construction at the Garfield project. Virg M. Butler appears as assistant superintendent for the late afternoon shift and Vern Jeffries as such for the day shift. Warren E. Woodland functioned as millwright foreman. McAdams was the project personnel officer. b. Respondent Unions (1) Local 184, Salt Lake City, Utah It was stipulated that-McQuarrie was financial secretary for Local 184 of the Carpenters ; and Richard H. Hunt was business representative and treasurer. (2) Local 1.498, Provo, Utah By stipulation William G. Ryan, usually referred to as "Bill ," was identified as the business representative of Local 1498 , Lloyd Lott was its president, and Walter G . Willis its financial secretary. c. Machinists H. B. Egbert appeared as business representative of District 114, International Association of Machinists, the charging party in these cases. d. Discriminatees The two men on whose behalf the Machinists filed charges against the Re- spondents were John A. Olsen and Weston W. White. Both resided at Provo, Utah, about 45 miles southeast of Salt Lake City. B. The Respondent Company's discriminatory refusal to hire Olsen and White 1. John A. Olsen Olsen testified for the General Counsel that he and Weston W. White arrived on the Company's Garfield project'on May 2, 1949, about 9 a. in. for the purpose of seeking employment. Olsen had previously worked for the Company on -jobs in North Carolina, Ogden and Geneva, Utah, and Wells, Nevada. After- making several inquiries they accidentally met Vern Jeffries with whom he had pre- viously worked. As to his capacity, Jeffries testified that he was assistant superintendent in charge of construction on the day shift under Vincent E. ("Vic") Ryan. He had several foremen and about 75 men of various classifica- tions of workers under him. He issued instructions to the foremen and super- vised their work and crews. He did not employ men, but could recommend them to Ryan, superintendent: He did have authority, however, to fire men UTAH CONSTRUCTION CO. 227 under him by sending them to the personnel office "to get their time." In. addition he could effect transfers of men on jobs within the scope of his work and could make recommendations for increases in pay, in conformance with classifications contained in the agreement . I find that Jeffries was a supervisor as defined in the Act. a. Olsen's conversation with Jeffries Olsen related a conversation he claims to have had with Jeffries on the early- morning of May 2, 1949, in front of the repair shop with White present: "I stopped and asked him . . . what the possibilities of getting a job were and. he told me that they were hiring men only through the union." Testifying for the Respondent Company, Jeffries stated : "I cannot recall that conversation." In general he denied ever discussing with employees any question of their affilia- tion with a union. Specifically he denied ever stating to any employee or applicant that they must be cleared through the Carpenters before they could. obtain jobs. He knew there were some union members at work because he had. seen union buttons displayed. I credit Olsen's version of this conversation. At most, all Jeffries stated was that he had no recollection concerning it, coupled with a sweeping general negation of any such statement to anyone. Following this talk with Jeffries, Olsen related that he and White proceeded to find Vincent E. ("Vic") Ryan whom they located near a building in which cement vats were under construction. This was about 10 a. in. Present were Olsen, White, Ryan, Virg M. Butler, and Walter E. Woodland, all employees of the Respondent Company. It is necessary first to fix the exact status these men occupied with the Company. According to "Vic" Ryan's testimony for the General Counsel, he had been superintendent of construction on the Garfield contract since it started in Octo- ber 1948. He directed assistant superintendents and foremen as to job assign- ments, coordinated their work, and saw they complied with plans and specifica- tions.. Part of his duties was to ascertain from his foremen what workmen were needed and then to requisition them from the personnel office. Occasionally he interviewed applicants and, if they were needed, he referred them to per- sonnel. The actual placing of applicants on the payroll was accomplished only by the personnel manager. He was empowered to fire both foremen and workers, to effectuate transfers, and to make promotions. I find that "Vic" Ryan was a supervisor under the terms of the Act. Virg M. Butler likewise testified without contradiction for the General Counsel as to his duties, authority, and responsibilities. He was one of several assistant superintendents at the Kennecott Copper job. He supervised the construction. of electrolytic tanks on the "swing shift." Under him worked millwrights,. operating engineers, and laborers, all of whom except the last named were under foremen. He did not actually employ or discharge workmen but made recom- mendations to Ryan. On this job he had made no recommendations of hiring.. He assigned men to specific work, directed them, and checked that they per- formed their assignments. I find that Butler was a supervisor in accordance with the provisions of the Act. b. Olsen's 11rst conversation with Ryan Under these circumstances Olsen told of the following conversation with Ryan : I had been acquainted with Mr. Ryan a little bit before , and I was in- troduced to Mr. Butler. During the conversation Mr. Ryan asked me what union I belonged to and I showed him my cards, my quarterly cards; in the Carpenters organization, 1498, in Provo. He asked me if I could come to. 961974-52-vol. 95-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work that afternoon and I told him no, it was a little bit late, but I could make it the next day at 4: 30, and at that there was a Mr. Butler that said, that told me, "Fine, I'll be looking for you then." And Mr. Ryan gave me a note to a Mr. McAdams to go and get fixed up for-recommended me, I sup- pose, for a job. This note is in evidence and reads : McADAMS, Please sign up Mr. J. A. Olsen to report on Swing Shift Tues.- 4: 30 p. in. Welder. V. E. Ryan. (The ink figures "5/2/49" were placed on the note by Olsen.) On cross-examination Olsen admitted that while he told Ryan he belonged to the Carpenters Union , he failed to mention that he was a member of the Ma- chinists Union . His explanation was that Ryan had not asked him about the Machinists . He also stated that upon his return to Provo that evening he had written a memorandum of the day's events. Neither this nor a subsequent mis- dated statement to a field examiner of the Board were offered in evidence, although referred to in the testimony. As a reason for so doing he pointed to his recent difficulties with the Carpenters Union at Provo, to which reference will be made later in this Report . No explanation was offered as to how or why he retained possession of Ryan's note to McAdams , the personnel manager, or why he dated that document with ink figures. It should be noted at this point that Olsen in his own testimony , never re- ferred to the specific job for which he applied to Ryan. His testimony that he intended to work as a millwright does not alter the fact that such was never mentioned in Olsen's talk with Ryan. "Vic" Ryan also testified for the Respondent Company about this conversation. He stated that he, Olsen , Woodland, and a foreman named Harlocker were present . He had no recollection of seeing White there . Harlocker had previously told Ryan he needed a welder, so in filling out the note to the personnel manager, quoted above , Ryan wrote in the word "welder." Ryan was not at all certain of the content of his talk with Olsen. A. He came up and shook hands with me and they requested that I-told me [sic ] to request that he was seeking employment there and that's all I remember of ever talking to him. Warren E. Woodland, millwright foreman, whom both Olsen and Ryan testified as having been present at this conversation, testified for the defense that all he heard said was Olsen's inquiry for a job and Ryan 's statement that he would give him a note to McAdams of the personnel office, which was done. He did not believe either White or Butler was present. Virg Al. Butler , a company witness, testified that he did not recall seeing either Olsen or White on May 2 , 1949, or having any conversation whatsoever with them. All of the Company's witnesses, including "Vic" Ryan, Woodland , and Butler, repeatedly denied that they ever questioned employees or applicants regarding union activities or ever told them that they must clear with the Carpenters in order to secure employment . "Vie" Ryan made specific denial as to these matters with respect to Olsen and White : Q. Are you absolutely certain in your mind that you didn 't instruct Olsen or White that they had to join the Carpenters' Union? A. I am. I am constrained to credit Olsen's version of this conversation , although I do not regard him as being in all respects a trustworthy witness, either from the UTAH CONSTRUCTION CO. 229 content of his testimony or from his demeanor and appearance on the witness stand. But "Vie" Ryan's testimony did not refute any material statement made by Olsen. That of Woodland did so even less. And all Butler's testimony .amounted to was that he had no recollection concerning the matter. It is true that all three disclaimed the alleged statements to anyone and "Vic" Ryan specificially denied doing so to Olsen and White. It is a well-established rule of evidence that in giving it weight, specific affirmations may, in the discretion of the trial court, prevail over general denials. I apply that rule here. c. Olsen's conversation with McAdanis, personnel manager The record discloses without any dispute that McAdams was the personnel manager at the Company's Kennecott job. "Vic" Ryan's testimony showed that McAdams had the final duty and responsibility of hiring men, whether he re- ferred the applicants to McAdams or they came to the latter initially. The procedure followed in the present case bears this out. Documents received in -evidence in the nature of a "Personal History Questionnaire" and "Employee Record" substantiate it. And finally Putnam, district manager, testified "that in setting up the Garfield job lie employed McAdams as personnel manager and fully instructed him as to his duties. Consequently I find that McAdams was a supervisor of the Company within the definition of the Act. Following the conversation with "Vic" Ryan detailed above, Olsen, accompanied by White, proceeded to the personnel office and presented Ryan's note to McAdams. Olsen testified this conversation ensued : I gave him it note that Mr. Ryan had given to me saying that Mr. Ryan had recommended we went to work . . . McAdams asked me what union I belonged to and I pulled from my pocket my quarterly card showing mem- bership in the Carpenters as.of the first quarter of 1949 and the last quarter of 1948 and he started to write a note . . . [Then follows testimony regarding White which will be discussed later.] Q. . . . what did Mr. McAdams tell you to do with the note that he gave you...? A. He told us to take it into the Carpenters in Salt Lake for a clear- ance . . This note reads : Mr. McQuarry Will you please clear J A Olsen and [obliterated] MCADAMS On the record this evidence remains uncontradicted. Counsel for the Com- pany stated in open hearing that McAdams was not then employed by the Company and that a diligent search had failed to disclose his present where- abouts. Olsen admitted on cross-examination that McAdams told him to return the note after seeing the Carpenters, but he did not do so. He offered no explanation for this conduct. Not without some hesitation, because of Olsen's questionable dealing with both the Ryan note and the McAdams note and for other reasons noted above and below, -I still credit Olsen's version in its main facts. I find that McAdams told Olsen he must be cleared by the Carpenters and gave him a note to the Carpenters for that express purpose. d. Olsen's second conversation with Ryan, May 3, 1949 hollowing intervening events with respect to the Carpenters ' two Locals, which will b? considered hereinafter, Olsen testified he returned to the Gar- 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field job on the next day, May 3, 1949, about 4: 30 p. in. He was unable to find! McAdams, but did see "Vic" Ryan and talk to him. No others were present. I told Mr. Ryan that they wouldn't give me a clearance but that I was. ready to go to work and he says "Well", he says, "let's see if we can find so and so" and he mentioned some name but I did not catch it ... and we didn't find the gentleman that he was looking for and so he says "Well, they will have to clear you, I guess, or you can't go to work." . . . He said they were sorry but there was nothing else to do about it so I just went home.. "Vic" Ryan's only testimony regarding this occurrence was that he did not recall the conversation nor even remember seeing Olsen on that date. Such a refutation is hardly convincing under the circumstances, so I credit Olsen's testimony. . From the foregoing it is clear that "Vic" Ryan and Jeffries questioned Olsen. regarding his union affiliations, especially with respect to the Carpenters. It is equally apparent that Ryan accepted Olsen's application for a- job with the Company, but made such employment contingent upon a clearance from the Carpenters. The note from Ryan to McAdams and the note from McAdams .to. McQuarrie of the Carpenters are additional proof of this process of discrimi- nation.. Then, finally, when the Carpenters did not clear Olsen, the Company- refused to hire him. I find that the nonclearance by the Carpenters was the sole and exclusive reason for the Company's refusal to hire Olsen, after once having offered him work, even though on this contingency. 2. Weston W. White Mention has already been made that White accompanied Olsen to the Com- pany's Garfield project on May 2, 1949, and was present at the various conver- sations already delineated. In general Olsen was the spokesman for both and White had relatively little to say. In fact, in the talk with Jeffries, White never spoke and his desire for a job was not even mentioned. a. White's first conversation with "Vic" Ryan Those present on this occasion, according to White as a witness for the Gen- eral Counsel, were he, Olsen, "Vic" Ryan, Butler, and Woodland. White's par- ticipation in the conversation was extremely limited. Upon being introduced to Ryan, White "asked Mr. Ryan if he needed any men and Mr. Ryan asked Mr. Olsen and me all of our qualifications." ^ White replied that he had worked on several construction jobs as a heavy duty mechanic; "He asked me if I belonged to the union and he told me that all the jobs cleared through the union and he asked me if I belonged to the union . . . He did not specify any union. At that time I told him I'd been working . . . under a permit . . . from the Op- erating Engineers." White never mentioned he belonged to the Machinists. Ryan told White that he had no work for White but that McAdams might have some opening. Thereupon Ryan wrote out a note for Olsen to present to Me-. Adams, but White's name did not appear on the note. Ryan gave no separate note to White. Olsen's testimony concerning White's contribution rather elaborated what White himself had related, but added nothing new. "Vic" Ryan testified he did not remember White being present at this occur- rence. Woodland and Butler testified to a similar lack of recollection. I credit the version of White and Olsen that "Vic" Ryan asked about White's union affiliation and said applicants must clear through "the union"-unspecified as it was. But White's credibility is substantially lessened by the fact that, UTAH CONSTRUCTION CO. 231 in reply to Ryan's question , he withheld the information that he belonged to the International Association of Machinists . In any event , even if White's testimony be taken as true, it still shows that Ryan did not promise White a .job, but in fact told him he had none. The absence of White's name on the note Ryan gave to Olsen verifies this. b. White's conversation with McAdams Olsen and White took "Vic" Ryan's note to 1\icAdams, personnel manager, and White then participated in the ensuing conversation . According to White : Art [Olsen] told him that Mr . Ryan had said he could fix Wes [White] up with a job, that he had some there . . . . He [McAdams] asked what job that Mr. Ryan had sent him over for . Art said he didn't say any job, but he said there was some openings that White can clear through the unions, if White could clear through the union. Then Mr. McAdams asked me if I belonged to the union and I said yes , I belonged to a union . He said "Which union do you belong to?" and I produced my machinists book and showed it to him. Mr. McAdams had started to write.on this note that he was writing for Mr . Olsen. When I showed him my Machinists book, he scratched the name on the bottom off and said "Don't show that book around here or you won't be able to get a job." He handed my machinists book back to me and told me that I would have to clear through the Carpenters union in Salt Lake. McAdams' note to McQuarrie is in evidence.. Following the words "J A Olsen and" appears a portion scratched out in pencil . It is difficult to decipher the obliterated portion, but the Trial Examiner is of opinion that the first letter to the left is a "W " of the same style as appears in the word "Will." Olsen's testimony was along the same line . As already mentioned , McAdams did not testify, counsel for the Company stating that they could not find him. Assuming that White and Olsen on the whole told the truth , which I do, what must be found as to the contents of this conversation as it related to White? First, McAdams inquired about White's union affiliations . Second, McAdams an- nounced that jobs on the project must be cleated with the Carpenters . That is all. White, himself, did not even ask for a job although Olsen inquired about it, apparently for White . McAdams at no time promised a job to White specifically. If the obliterated portion of the note means anything , it is simply that McAdams may have intended originally that White should go to the Carpenters, the purpose being expressed in the words "Will you please clear" ( emphasis supplied). But he changed his mind before delivering the note. Olsen had definitely been promised a 'job by "Vic" Ryan, contingent upon his being approved by the Carpenters . No such contingent promise was made to White by McAdams. c. White's second conversation with "Vic" Ryan Both White and Olsen testified that after they had talked to McAdams and were leaving the project to go into Salt Lake City to call on the Carpenters Union, they met "Vic" Ryan . Olsen did all the talking ; White never said a word. According to White, this occurred : Mr. Olsen asked Mr. Ryan if there wasn't any way that he could give a clearance for me or a note so that I could get cleared to come on the job, as we would like to ride together from Provo . Mr. Ryan said that he could not, that all the clearances had to come through the union. Olsen corroborated this. Ryan had no recollection about it. The most remarkable thing about this. conversation was White 's silence. He testified that he had had 2 years of college training in electrical engineering 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and yet here, as all through the events of May 2, 1949, he was inarticulate. Never- once did he personally make a definite request for a job. I reluctantly credit the testimony of White and Olsen about this talk with Ryan. At most it means. only that Ryan reaffirmed the Company's policy of hiring only men cleared by the A. F. L. craft union. Nowhere in this conversation did Ryan state he would. employ White under any conditions. In fact only about an hour previously he had stated he had no job for White. 3. The alleged discrimination against the Machinists Paragraph IX of the complaint alleges in part that the Company "refused to- employ John A. Olsen and Weston White because of their membership in the- International Association of Machinists...." What proof does the record disclose to support this allegation? As to Olsen, his own testimony shows that he never disclosed to "Vic" Ryan,. Jeffries, or McAdams that he belonged to IAM and no evidence was submitted to prove they knew it otherwise. Consequently the allegation as to Olsen fails completely. White did show McAdams his membership card in the Machinists Union. But it has hereinbefore been found that "Vic" Ryan had already told White no jobs were open for him and that statement was substantially reiterated in a subse- quent conversation. It is true McAdams told White he should not display his: IAM card if he desired a job. But at no time did McAdams agree to employ White contingently or otherwise. Quite the contrary, he withdrew his proposal. that White consult the Carpenters Union. The allegation as to White, therefore„ also must fall. On this question the Respondent Company offered proof that various em- ployees on the Garfield contract had belonged to IAM while working for Utah. Construction Company. Woodland testified that he had belonged to the Ma- chinists up to 1945 and that John Busk, Lavar Rees, Ridner, and Henry Ralston had also worked for the Company while carrying Machinists' cards. All this merely makes stronger the findings made as to Olsen and White. Two letters from H. B. Egbert, business representative of IAM, to Putnam. fail to prove any discrimination against the Machinists. In fact they show Putnam had held a conference with Egbert on this subject. I find that the- Company did not discriminate against Olsen and White by refusing to hire them. because of their membership in IAbI and did not discriminate against IAM otherwise. I shall therefore recommend that the quoted portion of paragraph IX of the complaint, relating to the International Association of Machinists, be dismissed.- C. Interference, restraint, and coercion by the Respondent Company It has already been found in this Report that "Vic" Ryan, McAdams, and' Jeffries interrogated Olsen regarding his union affiliations and McAdams like- wise questioned White on the same subject. Other remarks and actions on, their part, sounding of coercion, have also been enumerated. Without repeat- ing them, they clearly constitute such interference, restraint, and coercion as: are interdicted by the Act. It is therefore found that the Respondent Company, beginning on or about May 2, 1949, interfered with, restrained, and coerced its employees in violations of Section 8'(a) (1) of the Act. UTAH CONSTRUCTION CO. 233 D. The Respondent Pi'nions' alleged uatilawfnl refusal to grant membership to Olsen and White Attention is again called to the fact that two local unions of the United Brother- hood of Carpenters and Joiners of America, A. F. L., appear as Respondents in this proceedinb Local 184 at Salt Lake City and Local 1498 at Provo, Utah. The complaint alleges that both locals "have insisted that Respondent Company re- quire that persons to be employed by Respondent Company . . . be cleared by said Respondent Unions, before such persons could be employed" ; and. they re- fused to clear Olsen and White because of their membership in IAM and "their non-membership in good standing in Respondent Unions." The case against Local 184, Salt Lake City, will be considered first. In the view of the Trial Examiner the respective situations of Olsen and White appear substantially dissimilar, so they will be discussed separately. 1. The case against Local 184, Salt Lake City a. Olsen Olsen testified that after applying for a job with the Company on May 2, 1949, at Garfield, he took the note given him by McAdams in to Salt Lake City to the office of Carpenters Local 184 at the Labor Temple. He arrived early in the afternoon, accompanied by White. At the office he found two men, one of whom identified himself as McQuarrie, financial secretary of Local 184. Accord- ing to Olsen, he told McQuarrie that McAdams, the Company's personnel man- ager, "had sent me in for a clearance on the job; as carpenter" and displayed the note. McQuarrie asked to see Olsen's "blue book" which he had left at home, but showed his quarterly membership card instead. This is in evidence and was signed by W. G. Willis, secretary of Local 1498. At the top appears : "This card expires March 31, 1949." In the lower left-hand corner are the words "Jan. Feb. March." The word "Jan." is punched through with a small round hole. Noting all this, McQuarrie remarked that the card was only good for January. To this Olsen replied that he had mailed a check to Provo Local 1498. McQuarrie insisted "It would look better if it was punched" and asked Olsen where he came from. When Olsen mentioned Provo McQuarrie went into a back room for a few minutes and upon his return told Olsen : "You are on the list all right, but you are on the list as not O. K." Thereupon McQuarrie "re- fused to give me the clearance" and stated that Olsen must get a note from "Bill" Ryan, business representative of Provo Local 1498, "saying you are all right." Olsen left without any document from McQuarrie. It is to be noted that he did not tell McQuarrie he belonged to the Machinists. White's very limited testimony as to this part of the conversation tended to corroborate Olsen. McQuarrie, a man of 69 years of age, did not testify, because, according to Richard H. Hunt, business representative of Local 184, he was confined at home with a serious heart attack. I find the facts of this occurrence to be substantially as just set forth. Do they support the allegations of the complaint? Olsen came to Local 184 to assert his membership in the Carpenters Union and through such membership to obtain an advantage for himself, namely, a job with the Company. When McQuarrie requested proof of his good standing, Olsen presented his card which showed on its face that no dues had been paid since January, although this was May 2. McQuarrie could not be expected to accept Olsen's word that he had sent the Provo Local Union a check and prop- erly demanded that Olsen secure a statement of good standing from the Provo 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local to which he stated " he belonged . Olsen never presented such a state- ment to Local 184. Received in evidence was a copy of "Constitution and Laws of , the United Brotherhood of Carpenters and Joiners of America and Rules for Subordinate Bodies Under its Jurisdiction . Established August 12 , 1881 . Constitution as Amended January 1, 1949." The testimony of Hunt showed this document governed Local 184 and Local 1498. Section 45 deals with "Members in Ar- rears." In substance the section provides that "a member who owes the Local Union two months dues shall be notified by mail . . . by the Financial Secre- tary during the third month of said delinquency that if said arrearages are not paid before the last day of the third month he will be suspended . . . until he squares up entirely all of his indebtedness ....' Provisions are made for reinstatement. Olsen was clearly in arrears under this section , as shown by his card. His story to McQuarrie about being in good standing in the Provo Local was pal- pably false, as will appear later. Under the regulations governing the Carpenters , McQuarrie had no other alternative than to demand proof of Olsen 's good standing in the Provo Local. Such action on his part was not a refusal to permit Olsen the benefits of mem- bership. It was merely a clerical function to check his membership . Accord- ing to the Carpenters' constitution , Olsen must be in good standing before he. could request benefits from his own or any other Local Union . McQuarrie merely insisted that he prove such good standing from his own Local. By so doing he did not finally refuse Olsen a chance to work for the Company. Ac- cording to Olsen's story, McQuarrie asked both himself and White whether they belonged to IAM, but that question was not answered. I conclude that the allegations of the complaint against Local 184 completely fail so far as Olsen is concerned . I shall therefore recommend that the por- tion of the complaint relating to Olsen be dismissed as to Local 184. b. White White, unlike Olsen, had never been a member of the Carpenters Union, but had belonged to IAM since 1939 . He accompanied Olsen on the afternoon of May 2, 1949, to the Carpenters Local 184 office at Salt Lake City , although his name did not appear on the note which McAdams had handed to Olsen for pres- entation to McQuarrie . Following Olsen's talk with McQuarrie regarding his own situation, White engaged him in conversation. White testified that he first asked McQuarrie "for a clearance" and the latter answered that "they were not taking any more applications in the Carpenters Union and that they had a waiting list." He further stated that the Carpenters were not issuing any working permits, even though membership or a permit was the only method by which White could secure a clearance for the job. White had stated he once had a permit from the A . F. L. Operating Engineers ; for answer McQuarrie told him to consult the Engineers. To this testimony by White, Olsen added that McQuarrie asked both White and himself if they belonged to the Machinists Union. The record fails to show that either made a reply. McQuarrie did not testify because of illness, but Richard H. Hunt, business representative and treasurer of Local 184, stated that in fact it was accepting membership about May 2, 1949, although it may have .had a small waiting list. I credit Hunt's version of this matter rather than White's ; it indicates Mc- Quarrie made no such statement. In the absence of any contravening proof the stories of White, Olsen, and Hpnt must be accepted with the.exception noted. But under this state of facts UTAH CONSTRUCTION CO. 235 White had no right to expect any benefits whatsoever from the Carpenters Union because he had never been a member . All he actually did was ask McQuarrie bow he could be cleared for the Garfield job. White did not testify unequivocally that he really applied for membership , but inasmuch as he had belonged to the Machinists Union since 1939 he must have known of the bitter controversy between that organization and the A. F . L. craft unions in the building trade and must have been equally certain he could not concurrently belong to both unions. It is logical to infer that this was the reason he never actually applied to become a member of Local 184. Under these circumstances the Carpenters Local 184 was under no obligation whatsoever to assist White. Nor did it lie under any duty to accept him as a member or issue him a working permit, even if he had applied. Perhaps McQuarrie was influenced not to urge White to make application for membership because of his suspicion that White belonged to IAM, as shown by his question to White about that matter . In refusing to issue White a clearance for the Kennecott project under these circumstances McQuarrie acted fully within his official duties. Consequently I shall recommend that that portion of the complaint against Local 184 which relates to White be dismissed. 2. The case against Local 1498, Provo a. Olsen According to Olsen 's testimony, his relations to Local Union 1498 at Provo go back beyond the events of May 2, 1949 , already chronicled in this Report. He had been a member of IAM for about . 13 years, but on November 18, 1948, he filed a written application for membership with Local 1498 and was accepted. He continued in good standing by payment of his dues through January 1949. On February 4, 1949, he attended a meeting of the Provo Local and heard William G. ("Bill" ) Ryan, its business agent, make an open statement , concurred in by President Lloyd Lott, "to the effect that anybody that belonged to the Machinists could not belong to the Carpenters also." Later, on March 11, 1949, preceding a regular meeting, Olsen asked "Bill" Ryan to clear him for a job in Pocatello, Idaho. Ryan replied : And he told me, "Well, I would be glad to send you, but you 've got a card in the Machinists." And I says, "Well, Bill, I also have got a card in the Carpenters." He says, "I know, but I can't clear you" ; and he told me then that I would have to sign a statement to the effect that I would withdraw from the Machinists. All of this was therefore known to Olsen when he attempted to secure a job with the Company and obtain a clearance from Local 184 subsequently on May 2, 1949. In accordance with Article 45 of the Carpenters' constitution , W. G. Willis, financial secretary of Local Union 1498, sent Olsen a postcard on April 30, 1949, calling attention to his delinquency in dues for the 3 months beginning February 1. On the same day Olsen mailed his check to the Local for $5 to clear the delin- quency. Following his visit to the Garfield project and to Local 184 on May 2, 1949, Olsen returned to Provo and about 4 p. in. called at the office of Local 1498. There he talked to Willis ; "Bill" Ryan was not present. Willis mentioned having received 01sen's check. Olsen then told Willis of his opportunity for a job for the Company beginning the next day and asked Willis to punch his card so he could be cleared . Willis replied that "the body" would not permit him to do so. 236 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD Accordingly Willis wrote a letter to Olsen, dated May 3, 1949, returning the check and stating: We regret that 'we are under the necessity of refusing to accept further dues from you until we have received your affidavit stating that you are no longer affiliated with the International Association of Machinists. This ended Olsen's relations with Local 1498. White, in brief testimony, verified Olsen's story. William G. ("Bill") Ryan, business representative of Local 1498, testified that the action of that body on February 4, 1949, followed instructions previously received from the Grand President of the Carpenters' Union "stating that the men would have to dis- affiliate from the International Association of Machinists if they wanted to continue in good standing in the United Brotherhood of Carpenters and Joiners of America." He further stated that Olsen was notified and that the financial secretary was instructed by the Local Lodge to accept no further dues from men in this dual membership category until they furnished an affidavit showing disaffiliation with the Machinists. I accept the facts outlined above as true. Section 42, "Qualifications for Membership," subsection V, of the Carpenters' constitution reads : No member of the United Brotherhood can remain in or become a member of more than one Local Union, or any other organization of carpenters and joiners, or any mixed union of building tradesmen, under penalty of expul- sion .. . The LVM is manifestly, in part at least, a "mixed union of building tradesmen" and an organization overlapping the Carpenters. The General President of the Carpenters, in section 10 of the constitution, is granted very extensive powers to supervise and regulate the organization, including the local unions. His letter requiring dissociation of members from the IAM, upon which Local 1498 acted on February 4, 1949, comes clearly within these powers. This action of the Provo Local was therefore in accordance with its constitution, regulations, and orderly procedure. Its date shows it had nothing to do with the Company's Kennecott contract so far as Olsen was concerned. From that time forward Olsen was placed on notice that he could not expect to receive benefits from the Carpenters unless he terminated his Machinists' affiliation. The fact that, with this knowledge, he attempted to do so, casts substantial doubt on his good faith in the entire episode. White. stands in the same position. It is clear from the facts that the Local Unions (lid not actually refuse to clear Olsen. What they did was to inform him of the steps he must take to be rein- stated in good standing. That consisted primarily of severing his membership in the Machinists and paying his delinquent dues. This he knew for 3 months before he applied for the job on May 2, 1949. If any inference is to be drawn it is that when Olsen regained good standing the Locals would clear him, not the contrary. This is certainly not "to restrain or coerce," as inhibited in Section 8 (b) (1) (A), but a perfectly proper exercise of the proviso in that Section, namely, "to prescribe its own rules with respect to the acquisition or retention of membership." Nor is it "to cause or attempt' to cause an employer to dis- criminate against an employee." With respect to Olsen, the Unions made no threats, demands, or representations whatsoever to the Company. They merely administered their own internal affairs. The Company refused to hire Olsen entirely on its own account and thereby violated Section 8 (a) (3). The Unions did not thereby violate Section 8 (b) (1) (A) or (2). UTAH CONSTRUCTION CO. 237 Under these facts I find that Local 1498 did not unlawfully or even improperly .decline to clear Olsen for the Kennecott job. I shall therefore recommend that ..those portions of the complaint relating to Olsen's dealings with Provo Local .1498 be dismissed.. b. White 'The record .discloses no proof whatsoever that White ever applied for member- ship in Local 1498, ever became a member, or ever sought-to obtain a clearance from .that body for the Company's Garfield job. I shall therefore recommend that such parts of the complaint as allege that the relations of Local 1498 to White constitute a violation of the Act be dismissed. 3. The defense that Olsen was currently not an employee under the Act The separate answers of the Respondent Company and the Respondent Unions respectively set up an affirmative defense that on May 2, 1949, Olsen was working for the Union Pacific Railroad and was therefore not an employee as defined by the National Labor Relations Act, as amended.. In view of the findings and recommendations heretofore made in this Report as to the dealings of Olsen .and White with Local 184 and Local 1498, I deem it unnecessary to pass on this .question. Conclusions It has been .deemed advisable thus far in Section III of this Report, dealing with the unfair llibor practices of the Respondents, to confine it to finding the facts involved without attempting to apply the law to such facts. The reason is that the agreements and the actions of the Respondents are so closely tied in with each other that they must be considered together in reaching final conclu- .-sions. The facts now having been found, do they constitute violations of Sec- tions 8 (a) (1) and (3) by the Company and 8 (b) (1) (A). and 8 (b) (2) by the Unions?" 17 These sections read: Section 8 (a) It shall be an unfair labor practice for an employer- n n n i f t (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the 'United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (1) if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective-bargaining unit covered by such agreement when made ; and (ii) if, following the most recent election held as provided in section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote in such election shall have voted to authorize such labor organization to make such an agreement : Providcd farther, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if 'be has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, -or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; a + s s n s s (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed An section 7: Provided, That this paragraph shall not impair the right of a labor 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The agreements The validity of the agreements involved here turns primarily on their so-called "union-security clauses.". It is also determined in part by the absence of any representation election and certification by the Board under Section 9 (e). Admittedly, as contended by the Respondents in their briefs, subparagraph A of article III of the agreement of June 1, 1948, which was in effect on May 2, 1949, does reserve to the contractor, "entire freedom of selectivity in hiring." Subparagraph B also speaks of hiring "regardless of union membership," but in the same sentence "the contractor agrees to hire both former workmen and others "in the classifications covered by this agreement." In subparagraph C. the Union promises to assist the contractor in procuring workmen by maintain- ing lists of qualified and available persons, "which lists CONTRACTOR will refer to prior to the procurement of workmen." (Emphasis supplied.) The plain import of this language is that the contractor, in hiring men, must resort to these union lists, regardless of other available sources of men. In actual practice both Hunt of Local 184 and "Bill" Ryan of Local 1498 testified these lists were of union members and all were cleared by the Unions before becoming employed. Finally the third paragraph of the contract's preamble makes clear that one of its prime purposes was for the Unions to furnish employees and for the con- tractors to obtain them from the Union. This manifestly provides preferential treatment of union men. Evidently subparagraiihs D and E were meant to secure a union shop by providing for representation elections and certifications under Section 9 (e), but no such action eventuated. The provisos of Section 8 (a) (3) were not complied with. Article III of the August 1.2. 1949, contract bears out this interpretation and if anything is even more restrictive than the wording of the June 1, 1948, agree- ment. Here, then, are "union-security" provisions in the contract, coupled with certain "savings clauses." The proof in the record, it has been found, shows that "a large percentage" of the employees on the Kennecott. project had been cleared by the Respondent Unions, according to Hunt of Local 184. But others worked on the job' who had either obtained working permits from the Union or had been secured from wholly independent sources.' Thus the procurement of workmen here was not exclusively dependent on prior union approval. Nevertheless the practice of union clearance was predominant and preferential and it has been found that Olsen was refused employment for the sole reason that he was not cleared by the Carpenters. In similar situations what has the Board decided? The most recent case dealing with a somewhat similar situation is Acme Mattress Company, Inc., (Littleton).1s There the union-shop proviso read: As a condition of employment all eligible employees shall immediately take out and maintain membership in Local 169; however, new employees hired after the signing of this agreement shall be given a period of four weeks before being required to take out and maintain membership according to the Constitution of the Local Union as a condition of employment. 28 organization to prescribe its own rules with respect to the acquisition or retention of membership therein (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership ; 91 NLRB 1010. UTAH CONSTRUCTION CO. 239 This contract, however, had been abrogated by the required notice from the unions and negotiations were entered into for a new one. Agreement was finally. reached as to terms, including a union-shop provision , but not as to wages. , A strike was then called . An internal quarrel broke out in the union and many of the strikers returned to work, including Littleton . The union refused to sign the new agreement unless the employer discharged Littleton. Thereupon the employer signed the contract and discharged Littleton. No proceedings were had under Section 9 (e) of the Act. The Board held this to be a violation of Section 8 (a) (1), (2), and (3) by the company and 8 (b) (1) (A) and(2) by the unions. The Acme case is readily distinguishable from that at bar. Here the Unions did not tell the Company not to hire Olsen or White. Nor did they actually re- fuse to clear Olsen or White. They merely informed Olsen of the steps he must take to be reinstated in good standing . All they told White was the method they used in operating under the agreement. A recent similar case is Federal Stores Division of Speigel , Inc. (Amalgamated. Clothing Workers of America, Local Union No. 81, CIO)19 In that case the col- lective bargaining agreement contained these union -security provisions : Article V. Membership in Union 2. Subject to the exceptions specified in paragraph 1 of this Article, all full-time employees at present employed in the classifications specified in Article II shall become members of the signatory Union within fifteen (15) days after the effective date of this agreement or shall be discharged by the Employer. 3. Subject to the exceptions specified in paragraph 1 of this Article, all full-time employees in the classifications specified in Article II and who are hired after the effective date of this agreement shall become members of the signatory Union within 30 days after the date of their employment or shall be discharged by the employer. These provisions were enforced , including the discharge of several employees. The Board found a violation of Section 8 (a) (1), (2 ), and (3 ) by the employer. No charge had been filed against the union under Section 8 (b) (2). In International Longshoremen's and Warehousemen 's Union, CIO , ( Water- front Employers Association of the Pacific Coast ) " a similar situation arose. The longshore contract contained this provision : Preference of employment shall be given to members of the [ILWU] when- ever applicable . . both in making additions to the registration list and dispatching men to jobs. But. in accompanying memoranda a "savings clause" was attempted by the union : "In making additions to or deletions from the registered list; there shall be no discrimination because of union membership or activities. . . ." On their part the employers offered "to continue the present provisions of the Contract. . . ." In carrying out the contract preference was shown in hiring union men . The Board held the contract io be in violation of Section 8 (b) (2) : By thus entering into contracts discriminatorily granting preference in employment to their members, and by actively participating in the enforce- ment of these provisions, it is clear, and we find, that the Respondents caused the Employers to discriminate against non-member employees in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2). 19 91 NLRB 628. ° 90 NLRB 1021. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board cites former decisions.21 It should be noted that no such "savings clause" is to be found in the contract between the Respondents in the present case. The Board reached the same conclusion in the practically concurrent case of National Union of Marine Cooks and Stewards, CIO, (Pacific American Ship- owners Association)." There the contract read: The Employers agree to give preference of employment to members of the Union, and to secure employees in their Stewards Department through the offices of the Union.- This was held to be a violation of Section 8 (b) (2). Again in Pinkerton's National Detective Agency, Inc. (Stenhouse, et al.p 2s the Board held that the union violated Section 8 (b) (2) by causing the em- ployer to refuse work to certain nonunion applicants in violation of Section a (a) (3). The facts were very similar- to those at bar, but different in that the Unions here made no threat or representations whatsoever not to hire Olsen and White. The foregoing recent cases merely follow out a long line of previous decisions of the Board on the "security clause." 24 Under these authorities it is manifest that the contracts between the Re- spondent Company and the Respondent Unions is illegal. In the first place, no election and certification under Section 9 (e) was ever held, even though pro- vided for in the first contract. Secondly, the agreements violate the provisos of Section 8 (a) (3) in requiring immediate union membership instead of per- mitting the statutory lapse of 30 days. In the third place, the employer is obliged to discriminate in hiring, predominantly, if not exclusively, on the basis of union membership, which likewise contravenes Section 8 (a) (3).. Fourth, the "savings clauses" do not operate to the extent of taking these particular contracts out of the category of agreements which have been uniformly banned by the Board. Finally, in the case of Olsen, it worked out in a manner exactly contrary to the Act. In reaching this conclusion the Trial Examiner is aware of the peculiar nature of the construction industry in the work covered by the contracts. The record clearly shows that the procurement of manpower on a particular project must be speedily accomplished within definite time limits and that the method prescribed in article III may have worked out practically and successfully. But that does not save it, if it violates the Act. The Trial Examiner likewise is cognizant of the fact, as pointed out by the Respondent Company in its brief, that the General Counsel and presumably the Board itself in the past have hesitated to authorize representation elections in the construction industry. However that may be, the Trial Examiner is under duty to apply the Act to the facts of this case. He cannot take extrajudicial notice of such a policy, if indeed it existed ; he is governed by the facts and the law now before him. 21 National Maritime Union of America, 78 NLRB 971, enfd. 175 F. 2d 686 (C. A. 2), cert. den. 338 U. S. 954; American Radio Association, 82 NLRB 1344; National Maritime Union of America, 82 NLRB 1365. 90 NLRB 1099. 23 90 NLRB 205. See, e. g.: International Union, United Mine Workers of America, et at., 83 NLRB 91f); Amalgamated Meat Cutters and Butcher Workmen of North America (The Great Atlantic and Pacific Tea Company). 81 NLRB 1052_ and National Maritime Union of Ame-ica, 78 NLRB 971. The following are typical representation election cases : Eagle Lack Company, 88 NLRB 970: Champion Blower 4t Forge Company, 88 NLRB 868 ; Reading Hardware Corporation, 85 NLRB 610; Morley Manufacturing Company, 83 NLRB 404. UTAH CONSTRUCTION CO. 241 Counsel for the Company, in oral argument and again in their brief, state that these agreements. before final execution, were submitted to the Board's General Counsel and to an official of its Twentieth Regional Office and approved b them. But no proof of such matters was placed in the record. Conse- quently the Trial Examiner cannot consider them in reaching his decision. Counsel argue that the present contract provides an efficient and practicable method for the employer to obtain qualified workmen and at the same time permits the Unions to maintain their membership. But that is a question of public policy determined by the Congress in the Act itself. The answer to counsel's contention is set forth in a decision of the Board in a similar situa- tion, which was quoted with approval by the Court of Appeals of the Second Circuit in N. L. R. B. v. National Maritime Uwion of America, et al.: 25 We are asked by the Respondents to consider the economic facts which gave rise to the hiring hall in the maritime industry and which, . . . re- quire its continuance in the future. . . . Insofar as such factors touch upon the wisdom of legislation which renders the NMU hiring halls un- lawful, they, of course, raise considerations which can have no bearing on our determination of the issue before this Board. The full facts con- cerning the reasons for and operation of maritime hiring halls were brought to the attention of the Congress prior to the enactment of the Act. The Congress determined that the public interest required that hiring halls involving discrimination against employees who are not union members be outlawed. This determination is binding upon us. It is our duty to ad- minister- the law as written, not to pass upon the 'wisdom of its provisions. [Emphasis supplied.] I conclude that the contracts in the present case are invalid and unlawful in the portions quoted earlier in this Report. 2. Respondent Company As to the Respondent Company, it has been found that after offering Olsen a job it later declined to employ him because he was unable to present a clear- ance from the Respondent Unions, and that this was the sole reason for such refusal. It has also been found that the Company did not make a similar refusal to White. The ban against discrimination applies to applicants as well as to employees. I conclude that under the facts of this case the Company violated Section 8 (a) (3) of the Act. I have previously found that the Company also violated Section 8 (a) (1) by interfering with, restraining, and coercing its employees in the manner indicated. 3. Respondent Unions It has heretofore been found in this Report that the Respondent Unions did not clear Olsen and White for good and sufficient reasons in accordance with their constitution and regulations as contained in the proviso to Section 8 (b) (1) (A). I find that in their relations with Olsen and White they did not violate Section S (b) (1) (A) and 8 (b) (2) of the Act. I therefore recommend that the pertinent sections of the complaint as to the Unions in this respect be dismissed. I find, however, that the Unions violated Section 8 (b) (2) by entering into and maintaining the agreements in this case. - 175 F. 2d 686 , 689-690 (C. A. 2). 242 DECISIONS OF• NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent Company set forth in Section III, above, occurring in connection with its operations 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Company and the Respondent Unions have engaged in certain unfair labor practices, it will be recommended that they and each of them cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that by assenting to unlawful union-security provisions, the Respondent Company, violated Section 8 (a) (1) and (3). The undersigned will accordingly recommend that the Respondent Company withdraw recognition from the Respondent Unions and cease giving effect to its contracts of June 1, 1948, and August 12, 1949, with the Respondent Unions, or to any modification, extension, supplement, or renewal thereof, unless and until the Respondent Unions have been certified by the Board. Nothing in these recommendations, however, shall be deemed to require the Respondent Company to vary or abandon those wage, hour, seniority, or other substantial features of its relations with its employees, established in the performance of said contracts, or to prejudice the assertion by the employees 'of any rights they may have under said agreements. It has been found that the Respondent Company discriminatorily refused to hire John A. Olsen because of his lack of union membership. It will therefore be: recommended that the Respondent Company offer to John A. Olsen immediate and full reinstatement to his former or substantially equivalent position. It will be further recommended that the Respondent Company make him whole for any loss of pay he may have suffered as a result of the Respondent Company's discrimina- tion against him, as aforesaid, by payment to him of a sum of money equal to that which he would have earned as wages from the date of discriminatory discharge to the date of offer of reinstatement. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent Company's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein 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 he would normally have earned for each quarter or portion thereof, his net earnings, 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 will be recommended that the Respondent Company, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amounts due as back pay. It has been found that the Respondent Unions have violated Section 8 (b) (2) by causing and attempting to cause the Respondent Company, to enter into a contract containing a clause making membership in the Respondent Unions a condition of employment without complying with the union election procedure in the proviso in Section 8 (a) (3) of the Act. It will be recommended that the Respondent Unions cease and desist therefrom and cease maintaining or giving effect to the union-security provisions in their contracts of June 1, 1948, and August 12, 1949, with the Respondent Company, so long as the provisions do not conform to the provisos in Section 8 (a) (3) of the Act. SPENGLER-LOOMIS MFG. CO . 243 It has been found that by interrogating its employees as to their union member- ship and otherwise, the Respondent Company has interfered with, restrained, and. coerced its employees in violation of Section 8 (a) (1) of the Act. It will be recommended that it cease and desist therefrom. On the basis of the=above findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Utah Construction Company, in its operations, is engaged in trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, Local No. 1498 and Local No. 184, AFL, and International Association of Machinists are labor organizations within the meaning of Section 2 (5) of the Act. 3. By entering into the collective bargaining agreements of June 1, 1948, and August 12, 1949, containing unlawful union-security provisions involving discrim- ination in the hire and tenure of employees because of their union membership and. activities, and by assenting to such unlawful provisions, the Respondent Company, has engaged in and is engaging in unfair labor practices within the, meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its 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. 5. By discriminating in regard to the hire and tenure of employment of John A: Olsen, because of his union membership and activities, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 6. By attempting to cause and causing-the Respondent Company to enter into a collective bargaining agreement with unlawful union-security provisions United Brotherhood of Carpenters and Joiners of America, Local No. 1498 and Local No. 184, AFL, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from. publication in this volume.] SPENGLER-LOOMIS MFG. Co. and UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, (UAW-CIO), PETITIONER. Case No. 13-RC-1732. July 17, 1951 Supplemental Decision and Order On April 11, 1951, pursuant to the Board's Decision and Direction of Election herein, dated March 13, 1951,1 an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Thirteenth Region, among a unit composed generally of all production and maintenance employees at the Employer's Rock- Not reported in printed volumes of Board decisions. 95 NLRB No. 39. 961974-52-vol. 95-17