J. R. Cantrall Co.

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee are placed in a small envelope which McClees hands to the employee. McClees has no bank account. When the amount due McClees is not sufficient to meet his payroll, the Employer advances the necessary amount. Except for the small tools which are furnished to the employees by McClees, all the heavy machinery used in the logging operations and the sawmill at Fairfield are owned or borrowed by the Employer. The Employer pays for all major repairs of equip- ment. The Employer's woods foreman designates the particular area where McClees is expected to conduct logging operations and the lum- ber is cut at the Fairfield mill in accordance with the instructions of the Employer. Finally, it appears that McClees at the instance of the Employer has reduced the wage scale of the employees working under hilmm. In view of the foregoing, it is clear that although McClees has a certain amount of discretion in the conduct of the logging and sawmill operations at Fairfield, the Employer nevertheless retains substantial control over these operations. We find, therefore that Walter McClees is, in effect, a supervisor rather than an independent contractor and that the employees at Fairfield are employees of the Employer. We find, further, that the Employer's operations at Fairfield constitute a single integrated enter- prise in which all of the employees involved share a common interest. Accordingly a single unit, including these employees, is appropriate for collective bargaining purposes.' We find that a unit consisting of all production and maintenance employees employed at the Employer's Columbia, North Carolina, operations, including the employees at the Fairfield operations, but excluding professional employees, office clerical employees, guards, and supervisors as defined in the Act, is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 8 See J. G. Howard Lumber Company, 93 NLRB 1230. J. R. CANTRALL AND Jo G. CANTRALL D/B/A J. R. CANTRALL COMPANY AND H. C. SMITH COMPANY and INTERNATIONAL ASSOCIATION OF MA- CHINISTS, LOCAL LODGE No. 1235. Case No. 21-CA-714. October 15,1951 Decision and Order On June 29, 1951, Trial Examiner Charles L. Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the 96 NLRB No. 124. J. R. CANTRALL COMPANY 787 Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief The Board 2 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 In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 1. We agree with the Trial Examiner that the Respondents, in violation of Section 8 (a) (3) and (1) of the Act, discriminated against the six individuals named in the complaint with respect to their hire when they initially applied for employment in connection with the installation of machinery in the Western Waxed Paper Com- pany plant .3 As fully discussed in the Intermediate Report, the Re- spondents at that time informed the applicants, whose qualifications to perform this work is not, nor could be, questioned, that it was their policy to employ only members of the Millwrights Union and that if they hired the applicants they would invite "trouble" on the job by the building trades unions because the applicants were members of the Machinists Union. By thus conditioning employment on mem- bership in the Millwrights Union, the Respondents necessarily denied the applicants their statutory right to be considered for employment on a nondiscriminatory basis, that is, without regard to their union affiliation, when jobs became available shortly thereafter, as the Re- spondents expected. For this reason, the applicants, having been advised of the Respondents' discriminatory hiring policy, were not obligated to renew their applications when the expected jobs subse- quently opened up in order to establish that they were victims of dis- crimination. Obviously, such applications would have been mean- ingless and futile unless the applicants had first complied with the discriminatory condition of acquiring membership in the Millwrights Union. But the Act does not require applicants fo3' employment to submit to such discriminatory conditions.4 As the record and exceptions and brief adequately present the issues and positions of the parties, the Respondents' request for oral argument is denied. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Houston , Murdock, and Styles]. B Arthur G. McKee and Company, 94 NLRB 399; A. B. Swinerton, Richard Walberg and Howard Hassard, d/b/a Swinerton and Walberg Company, et al, 94 NLRB 1079; General Electric Company, 94 NLRB 1260 ; Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd., 185 F. 2d 1020 (C. A. 5). 4 See cases cited in footnote 3, supra. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, it is reasonable to assume, absent cogent evidence to the contrary, which we do not find in this record, that the Respondents' failure to offer employment to the applicants as jobs became available was attributable to the Respondents' discriminatory hiring policy rather than to the applicants' failure, to pursue their quest for employment from the Respondents' superintendent or fore- man, as the Respondents assert the applicants should have done.5 Plainly, the applicants had no reason to believe that the superintend- ent and foreman were not governed by the Respondents' announced employment policy. Indeed, it appears that these officials gave im- plicit effect to this policy and hired only members of the Millwrights Union to perform the work in question s 2. The Respondents contend that the complaint should be dismissed on the ground of nonjoinder of indispensable parties. They argue that the General Counsel should have joined as parties to this proceeding Associated General Contractors and Los Angeles Building and Con- struction Trades Council because they were parties to a certain master labor agreement "under color" of which the complaint alleges the Re- spondents discriminated against the named individuals. On the basis of this allegation of the complaint the Respondents reason that this case involves an interpretation of that contract. It is significant, however, that the complaint does not allege that the contract was invalid; in fact, at the hearing the General Counsel unequivocally asserted that he did not question the legality of the contract or seek an order setting it aside. As neither the validity of the contract nor the correctness of the Respondents' interpretation is.in issue, we find no merit in the Re- spondents' contention. Consolidated Edison Company of New York, Inc., et al. v. N. L. R. B., 305 U. S. 197, and other cases cited by the Respondents are therefore not apposite. Order Upon the entire record in the ,case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, J. R. Cantrall and Jo G. Cantrall, d/b/a J. R. Cantrall Company, Compton, Cali- fornia, and H. C. Smith Company, Los Angeles, California, their officers, agents, successors, and assigns, shall : 5In accordance with the Trial Examiner's recommendation , we shall award back pay to those applicants who were able and willing to accept employment when work became availa- ble, to be computed in the manner provided in the Intermediate Report. B Parker, a business agent for the Millwrights Union, identified a number of employees on the Respondents' payroll as members of the Millwrights Union. The Respondent Smith's letter to the Board , dated April 10, 1950, as well as the credited testimony , indicates that all the employees hired to perform the millwright work were members of the Millwrights Union. No evidence was offered by the Respondents to show that persons who were not members of this Union were also employed for this work. J. R. CANTRALL COMPANY 789 1. Cease and desist from : (a) Discouraging* membership in International Association of Machinists, Local Lodge No. 1235, or in any other labor organization ,of employees or applicants for employment, or encouraging member- ship in labor organizations affiliated with Los Angeles Building and Construction Trades Council, including Millwright and Machinery Erectors Locals of the United Brotherhood of Carpenters and Joiners of America, A. F. L., or in any other labor organization of employees or applicants for employment, by refusing to hire and employ prop- erly qualified applicants, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condi- tion of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any other manner interfering with, restraining, or coercing 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, Local Lodge No. 1235, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, ind to-refrain from any and all 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, Herman P. Stoekl, and Gilford J. Colvin for any loss of pay they may have suffered by reason of the Respondents' discrimination against them, in the - manner prescribed in "The Remedy" section of the Intermediate Report. (b) Upon request, make available to the National Labor Relations Board or its agents, for examination or copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (c) Post copies of the notice attached hereto as an Appendix ' at their respective offices, places of business, equipment or storage yards, in the State of California, and at all their projects now operating or upon which operation may commence in that State within 6 months from the date on which compliance with the Order herein begins. Copies of such notice, to be furnished by the Regional Director for 7In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order " the words "A Decree of the United States Court of Appeals Enforcing." 974176-52-vol. 96 51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Twenty-first Region, shall, after being duly signed by a representa- tive of the respective Respondents, be posted by the Respondents im- mediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees and applicants for employment are cus- tomarily posted. Reasonable steps shall be taken by the Respondents to insure that the notices are not altered, defaced, or covered by any other material. (d) Each Respondent shall notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order as to what steps the said Respondent has taken to comply herewith. _ Appendix 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 you that : WE WILL NOT discourage membership in INTERNATIONAL Asso- CIATION OF MACHINISTS, LOCAL LODGE No. 1235, or in any other' labor organization of employees or applicants for employment, or encourage membership in labor organizations affiliated with Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, in- cluding MILLWRIGHT AND MACHINERY ERECTORS LOCALS OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or in any other labor organization of employees or appli- cants for employment, by refusing to hire or employ properly qualified applicants, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Sec- tion 8 (a) (3) of the Act. WE WILL NOT in any manner interfere with; restrain, or coerce our 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, LOCAL LODGE No. 1235, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any and all 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 Sec- tion 8 (a) (3) of the Act. J. R. CANTRALL COMPANY 791 WE WILL make whole Walter A. Chunas, Jack C. James, Wen- dell L. Turnbow, A. V. Scott, Herman P. Stoekl, and Gilford J. Colvin, for any loss of pay they may have suffered by reason of our discrimination against them. ------------------------------ Dated--------------------- By..------------------ •-------- (Representative) (Title), 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 and Recommended Order STATEMENT OF THE CASE Upon a first amended charge filed April 7, 1950, by International Association of Machinists, Local Lodge #1235, herein called the Machinists or Machinists Union, the General Counsel of the National Labor Relations Board 1 by the Regional Director for the Twenty-first Region (Los Angeles, California), issued his complaint dated July 21, 1950, against J. R. Cantrall and Joseph E. Cantrall, doing business as Cantrall Engineering Company,' and H. C. Smith Company, herein called Respondents, and at times referred to respectively as the Cantrall Company and the Smith Company, alleging that Respondents, in the course of "a joint venture for the movement and installation ofmachinery at the plant of the Western Waxed Paper Company in Los Angeles, California," had engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. A copy of the original charge, the fir-st amended cl}arge, the complaint, and notice of hearing, was duly served on each of the parties.3 With respect to the unfair labor practices, the complaint alleges in substance that on or about January 1, 1950, Respondents "were engaged in a joint venture for the movement and installation of machinery at the plant of the Western Waxed Paper Company in Los Angeles, California," and that on or about Feb- ruary 7, 1950, and at other dates thereafter, Respondents refused to employ Gilford J. Colvin, Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, and Herman P. Stoekl at the said Western Waxed Paper Company project "because they were not members of the Millwright and Machinery Erectors, Local 1607, International Brotherhood of,Carpenters and Joiners of America,' and because they were not members of an affiliate of the Los Angeles Building and Construction Trades Council." Respondents filed separate answers. The answers admit the allegations of the complaint that during the years 1949 and 1950, Respondent Smith engaged as a general contractor in constructing a manufacturing plant for the Western Waxed Paper Company and that on or about January 1, 1950, Respondents "were engaged 1 The term General Counsel as used herein includes the attorney representing the General Counsel at the hearing. The National Labor Relations Board is referred to herein as the Board. 2 The complaint was amended at the hearing to correctly show the names of the Cantrall partners as J. R Cantrall and Jo G. Cantrall, and the firm name as J. R. Cantrall Company. 3 The original charge against the Cantrall Company alone was filed February 27, 1950. The first amended charge against both the Cantrall Company and the Smith Company was, filed April 7, 1950, and served on said Companies on April 10, 1950. 1 Herein called the Millwrights or Millwrights Union. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- in a joint venture for the movement and installation of machinery at the plant" of the said Western Waxed Paper Company in Los Angeles, California. The answers also admit that the various labor organizations referred to in the com- plaint, and each of them, are labor organizations within the meaning of Section 2 (5) of the Act. The answers deny the commission of the unfair labor practices alleged by the complaint and each Respondent denies that it is engaged in com- merce within the meaning of the Act. Pursuant to notice, a hearing was held at Los Angeles, California, on August 29, 30, and 31, 1950, before me, Charles L. Ferguson, the undersigned Trial Exam- iner, duly designated by the Chief Trial Examiner to conduct the hearing. The General Counsel, Respondents, and the charging party were respectively repre- sented by counsel who participated in the hearing. All parties were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, and to introduce evidence relevant to the issues. Following the receipt in evi- dence of the formal papers and prior to the taking of testimony, Respondents moved to dismiss the complaint "for want of indispensable parties." Argument was heard on the motion at the conclusion of which I reserved ruling. At the close of the case-in-chief on the part of the General Counsel, Respondents sub- mitted the following motions : (1) To dismiss the complaint "for the reason there is insufficient evidence to show that either of the respondents is engaged in com- merce within the meaning of the" Act; (2) to dismiss paragraphs VIII and IX of the complaint and to dismiss as to each of the individuals named in said para- graph VIII "for the reason the evidence is insufficient to show that there has been a violation of the Act as so alleged" ; (3) a renewal of the motion previously made "to dismiss the complaint in its entirety for the'want of indispensable parties"; and (4) to strike the testimony of witness Inwall, on behalf of the General Counsel, "because it is beyond the scope of the complaint." The motions were denied. At the conclusion of the evidence Respondents renewed "all of their motions to dismiss" theretofore made "upon the same grounds," and same were again denied. The General Counsel's motion to amend the pleadings to conform to the proof "in minor matters" such as "spelling" and correction of "typograph- ical errors" was granted. The parties were advised of their right to present oral argument and the General Counsel argued orally on the record. Counsel for the other parties waived oral argument. The parties were also advised of their right to submit proposed findings of fact, conclusions of law, and briefs. Respondents have filed a brief which has been examined and considered. No brief or proposed findings or conclusions have been received from either the General Counsel or counsel for the International Association of Machinists, Local Lodge #1235. 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 RESPONDENT COMPANIES A. H. C. Smith Company H. C. Smith Company is a California corporation engaged as a licensed general contractor, "principally in heavy industrial and engineering construction" includ- ing the erection of "Class A industrial plants" and "manufacturing facilities" involving the use of structural steel and "reinforced and slab concrete." The Company's office is at 718 16th Street, Los Angeles, and it operates principally in the southern California area. The aggregate value of contracts performed in 1949, for which a value is shown by the evidence, was $2,802,500. The largest contract during that year, in the amount of $1,700,000, involved the construction of a new manufacturing plant at Los Angeles for the Western Waxed Paper Com- Jr R. - dANTRALL COMPANY 793 pany Division of the Crown Zellerbach Corporation. Other construction contracts performed during 1949 included "a copper processing plant" at Terrance, $450,000, a college building at Pomona, $347,000, and work for the Imperial Irrigation District, $242,000, all in California. Also during 1949 the Company "finished up some work for the Atomic Energy Commission," "did work for the Pioneer Flint- kOte Corporation," built an addition "to the American Radiator plant in Ter- rance," which the Company "had constructed" in 1948, made "structural additions and changes . . . in the railroad yards ... and in buildings in the yards" of the Union Pacific and Santa Fe Railroads. The value of none of these last- mentioned contracts is given. It was said that the work at the railroad yards "probably did not total one percent . . . of the volume of work" done in 1949. B. J. R. Cantrall Company The J. R. Cantrall Company is a partnership composed of J. (Jean) R. Can- trall and Jo G. Cantrall, brothers. The firm's office is in a small building in the rear of J. R. Cantrall's residence at 2001 South Santa Anita Avenue, Arcadia, California, and they have an equipment yard at 13115 South Alameda Street in Compton,Califoriiia. Both Arcadia and Compton are in the-Los Angeles area. The Cantrall Company "specializes" in "steel erection work" as subcontractors "with various general contractors." The Company's equipment consists of cranes, although "cranes are mostly rented," not owned by the Company, "all kinds of hand tools," welding machines, a compressor, and six motor trucks used "to carry tools and the men around" to the various jobs. The Company "does not furnish any materials" and contracts only to furnish the labor, tools, and equipment required to do the work. The Cantrall Company is a licensed contractor in the State of California and during 1949, expiring in June 1950, had a license in the State of Arizona. In 1949 the Company carried on simultaneously two jobs out- side the State of California, the erection of transmission towers for the Bureau of Reclamation of the Department of Interior of the United States Government in the State of Arizona, the amount of that contract being $140,000, and the erection of grain bins in the State of Nevada for the Commodity Credit Corpora- tion. The ultimate value of the Nebraska contract was not definitely fixed. It appears to have originally been $50,000 but due to additional work the amount received was increased to "between fifty and one-hundred thousand dollars." The Company does "a lot of steel erection work for the National Steel and Ship- building Company at San Diego," California. J. R. Cantrall testified, "We do more work for National Steel than anyone else." National Steel operates as a fabricator. The source of its steel supply is not given. National Steel fabricates the steel for various jobs and calls for bids for its erection. The Cantrall Com- pany bids on "whatever" National Steel fabricates and if successful does the erection. Under contract with National Steel, the Cantrall Company erected six highway bridges and, as subcontractor for another general contractor, one high- way bridge during 1947 and 1948 All of these bridges are links in California State highways, some of which are also U. S. highways. During 1949 and con- tinuing into 1950 to the time of the hearing the Company erected a large number of Butler prefabricated, "steel frame," buildings at various points in California. The Butler buildings "come from Galesburg, Illinois." The Butler Company had a sales agency, the E. C. Livingston Company, at Los Angeles. The Livingston Company's sale contract includes erection of the building and Cantrall contracts with Livingston to do the erection work. The prefabricated buildings are shipped "packaged" to the erection site from Richmond, California, where the Butler Company has "a plant." I have stated the foregoing facts largely in the language of the witness, J. R. Cantrall, the sole testimony about the Butler buildings 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appearing in the record. The inference I draw is that these buildings are manu- factured or fabricated at Galesburg, Illinois, and are shipped to a place of busi- ness maintained by the Butler Company at Richmond, California, where perhaps something further in the nature of assembling and "packaging" is done before same are delivered to the erection site pursuant to a sale made by the Company's sales representative, the Livingston Company. Among the jobs done in 1949 was the erection of the steel in the construction of a manufacturing plant for the Peterson Company in ,Glendale, California, which company makes baby buggies. This job was under a contract with Economy Steel Conipany whieh furnished the steel. Also in 1949 the Cantrall Company, as subcontractor to National Steel, "put up the steel" in the construction of a new plant for the General Brewing Company, makers of "Lucky Lager beer," at Azusa, California. The Company's. total business in 1949 was "between $350,000 and $400,000." During the period in 1950 preceding the hearing the Cantrall Company erected an addition to the General Brewing Company plant which the Company had "put up" in' 1949, built a "seed mill for the Imperial Hay Growers Association" at Brawley, and erected buildings at three district fairs under subcontracts with the National Steel Com- pany. In addition during that period the Company erected three Butler buildings and at the time of the hearing was engaged in the erection of a Butler building at Buena Park in Los Angeles. All of the 1950 construction work was in the State of California. C. Western Waxed Paper Company (Los Angeles plant) The Western Waxed Paper Company is a division of the Crown Zellerbach Corporation, which is "a Nevada corporation . . . engaged in the manufacture of wood pulp and paper." It (Crown Zellerbach) operates "in several states, among them Oregon, California, Washington and New York," the "principal office" being at San Francisco, California. Crown Zellerbach Corporation, Seattle Charcoal Division, 54 NLBR 25. The Western Waxed Paper Company Division of the Crown Zellerbach Corporation "manufactures waxed paper prod- ucts. . . primarily industrial waxed papers such as food wrappers, bread wrap- pers being the largest single item, cake wrappers, cracker box liners and waxed paper for packaging meat, ice cream, and soft foods." The Western Waxed Paper Company operates three plants, two in California at San Leandro and Los Angeles and one at North Portland, Oregon, its principal office being at San Leandro from which the administration of the three plants is conducted. This proceeding involves only the Los Angeles plant. George C. Wieman, manager of the Western Waxed Paper Company's Los Angeles plant, was not prepared to give exact or complete totals on sales or purchases by that plant during 1949 or exact percentages-as to out-of-State sales or purchases ; however, his estimates and approximations show that sales by that plant in the year 1949 "were in excess of a million dollars" and that based upon a computation made by the "assistant office manager" the "percentage (of sales) out of the state (in 1949) was 6.799," and that the percentage of out-of- State purchases (in 1949) "based on purchases in excess of a million dollars was 13.83." Thus it appears, although totals are not given, that both sales and purchases by this plant during 1949 exceeded $1,000,000 and that direct out-of- State sales were at least $70,000 and direct out-of-State purchases were at least $130,000. The Los Angeles plant obtains some "products and supplies" from other divisions or plants of the Crown Zellerbach Corporation, principally Crown Zellerbach plants at Camas, Washington, and West Linn, Oregon. The pur- chases from these two plants "are billed to the Los Angeles plant from the Crown J. R. CANTRALL COMPANY 795 Zellerbach Corporation office at -San Francisco." The Los Angeles plant "regularly employs 250 to 300 employees." Prior to about March 1950 the Los Angeles plant of the Western Waxed Paper Company was located and operated at 910 East 61st Street in Los Angeles. Dur- ing 1949 a new plant was constructed at 5900 Sheila Street, Los Angeles. The new plant was constructed by Respondent, H. C. Smith Company, as general contractor. The new plant building was not fully completed until sometime in the early part of 1950. The amount of the H. C. Smith Company contract cover- ing the construction of this new plant was, as has been heretofore noted, $1,700,- 000. The latter part of 1949 the Western Waxed Paper Company called for bids for moving its machines and machinery from the old plant to, and the installa- tion of same at and in, the new plant. Respondent H. C. Smith Company was the successful bidder and received the contract for that work. Pursuant to an agreement hereinafter set out between the Smith Company and the Cantrall Com- pany, the moving of the machinery from the old plant to and its installation in the new plant was done by the two Companies jointly. Respondent's answer and the testimony of H. C. Smith, president of the Smith Company, and J. R. Cantrall, the business agent and representative of the Cantrall Company, de- nominates their arrangement under which they did the moving and installa- tion work' as "a joint venture." The events giving rise to this proceeding occuried in connection with this job. The amount of the contract for the mov- ing and installation job was $59,000 There is no doubt that both the Crown Zellerbach Corporation ° and its Western Waxed Paper Company Division are engaged in commerce within the meaning of the Act. If, however, the inquiry concerning commerce, so far as some may relate to those companies, be limited to their Los Angeles plant, it alone must be held to be so engaged and its business to be of such a nature, scope, and extent of direct out-of-State flow as would warrant the assertion of jurisdiction by the Board as to it. . Stanislaus Implement and Hardware Company, 91 NLRB 618. If, as to Respondent H. C. Smith Company, its work for the Atomic Energy Commission (Westport Moving and Storage Company, 91 NLRB 902), its con- struction of an addition to the American Radiator plant, and the "structural additions and changes" it made in the railroad yards of the Union Pacific and Santa Fe Railroads, all in 1949 and within the State of California, be not con- sidered, nonetheless, its construction in 1949-50, at a contract cost of $1,700,000 of the new Los Angeles plant of the Western Waxed Paper Company, brings it within the Act and places it in a category calling for the exercise of the Board's jurisdiction. Hollow Tree Lumber Company, 91 NLRB 635. As to the Cantrall Company, even if its work as a subcontractor of the National Steel and Shipbuilding Company and its contracts for the erection of the Butler buildings in 1949 and 1950, and its erection work in connection with the con- struction of highway bridges forming links in United States and State highways in 1947 and 1948, be not considered, nonetheless, its out-of-State construction contracts in 1949 in Arizona and Nebraska, aggregating $190,000 of its total income for that year of between $350,000 to $400,000, brings it within the Act 'In addition to the "main contract" for the construction of the new plant and this "separate contract" for moving and installing the machinery , the Smith Company had a third contract with Crown Zellerbach or its Western Waxed Paper Company Division for the construction of "supplementary facilities " at the new plant, such as, "the railroad, the water towers, the outside distribution, the wax tank farm, and pumping plant." The value of this contract was not given. 6 See Crown Zellerbach Company, 87 NLRB 1324 ; Crown Zellerbach Corporation , Seattle Charcoal Division, 54 NLRB 25; Crown Zellerbach Corporation, Crown Williamette Paper Company Division, 26 NLRB 1014 and 27 NLRB 651. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that class of enterprises over which the Board will assert its jurisdiction. Stanislaus Implement and Hardware Company, 91 NLRB 618. Finally the enterprise out of which this proceeding arose, the "joint venture" in which the two Respondents engaged, involving the moving of all the machines and machinery from the old plant to, and installing same at and in, the new Los Angeles plant of the Western Waxed Paper Company, constituted services neces- sary to the continued operation and production of that plant which , as has been found supra, is engaged in commerce within the meaning of the Act to such an extent and of such a nature as would invoke the exercise of the Board 's jurisdic- tion as to it, and since the value of such services was fixed at a minimum of $59,000 that enterprise alone was such as calls for the assumption of jurisdiction by the Board herein . Hollow Tree Lumber Company, supra. I find, therefore, that the Respondents , and each of them, are engaged in com- merce within the meaning of the Act, and that it will effectuate the policies of the Act for the Board to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS International Association of Machinists, Local Lodge #1235; Millwright and Machinery Erectors , Local 1607, United Brotherhood of Carpenters and Joiners of America, A. F. L.; and the Los Angeles Building and Construction Trades Council ; and each of them are, labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Smith Company bids contract for moving and installing machinery As has been noted, the Smith Company, as general contractor , during 1949 and completing in the early part of 1950 , constructed the new Los Angeles plant of the Western Waxed Paper Company, and, under a separate contract, constructed the "supplementary" outside facilities. As the construction of the new plant building progressed in 1949, the Western Waxed Paper Company asked for bids for the removal of all the machinery located in its old Los Angeles plant to the new plant and the setting up and installation of it there when the new building was completed to that stage. ,In contemplation of entering a bid on the work on behalf of the Smith Company, H. C. Smith, president of that Company, entered into negotiations with J. R. Cantrall, the business representative or agent of the Cantrall Company, seeking to associate the Cantrall Company in the enterprise in the event the Smith Com- pany obtained the contract. A. B. Hughes was, and for many years had been, the Cantrall Company's general superintendent. Smith said he considered Hughes a "top man when it comes to rigging, setting equipment, and handling mechanical construction," and that he entered into the negotiations with the Can- trail Company, which resulted in an agreement or arrangement between the two Companies to bid on the contract through the Smith Company and if successful to jointly do the work, because in his opinion "Jean (J. R.) Cantrall, Jo Cantrall, and Hughes constituted one of the best technical organizations" for doing the kind of work which would be required that was then "available." Under date of June 27, 1949, the two Companies entered into and executed the following written memorandum of agreement : Whereas, negotiations are under way for the purpose of securing a contract covering the movement and reinstallation of the machinery from the present Western Waxed Paper Company Plant on 61st Street to the new plant now J. R. CANTRALL COMPANY 797 being built. NOW, THEREFORE, it is agreed the following- joint venture basis will be established in event of the award of this work. 1. The J. R. Cantrall Company, working as a facility of H. C. Smith Co., will, in collaboration with Western Waxed Paper Company, make neces-' sary surveys, estimates, etc., in connection with this work. 2. In the event of award, Cantrall Company shall furnish necessary person- nel, small tools, powered equipment, etc., required, at minimum current rental rates for equipment, and necessary personnel whose wages will be paid direct by H. C. Smith Co. 3. The Cantrall Company will be reimbursed expenditures at the minimum current rental rates for powered equipment. 4. It is anticipated the contract will be secured on either a lump sum, basis or a cost plus basis. In any event, actual profits shall be split two-thirds to H. C. Smith Co., and one-third to T. R. Cantrall Company. In event the contract is on a cost plus overhead and profit basis, the overhead allowances shall be split on a fifty-fifty basis, one-half to H. C. Smith Co., and one-half to J. R. Cantrall Co. 5. All books and costs in connection with this work will be carried in a separate accounting available at all times for inspection by the Cantrall Company. 6. The Cantrall Company agrees to exercise maximum diligence in expedit- ing the physical work of movement of this machinery and to use the most qualified men available for this work. 7. In the event Cantrall Company fails to perform their portion of this work, which is the physical management and supplying personnel to the project, it is understood and agreed that this agreement may be cancelled and an accounting made on profits to date. 8. It is distinctly understood that the Cantrall Company will not be re- imbursed for hand tools, blocks, tackles, rollers, levels, etc. except through their profit and/or sharing of the overhead. At the time this agreement was made no bid on the moving and installation job had been formulated or submitted' by the Smith Company. Smith said the agreement "was entered into for the purpose of making available technical per- sonnel, equipment, and methods to enable us to bid the job." Thereupon J. R. Cantrall made a survey of the machinery at the old plant, the requirements of the job, and estimates of the costs. Thereafter the Smith Company submitted a bid and was awarded the contract. The date of the award is not definitely fixed but the evidence indicates it was prior to mid-November 1949, as of that time it seems to have been known that the Smith Company had been awarded the contract for moving and installing the machinery. No written agreement other than the memorandum above set forth was entered into between the Smith and Cantrall Companies. While J. R. Cantrall referred to,`verbal revisions" being made in that agreement, and Smith said "there were verbal revisions in order to more efficiently handle" the job, no material or substantial variations or changes were mentioned. In fact, the only thing specifically mentioned in that connection was a statement by Smith that it was verbally agreed that "all men (employed on the project) should be carried directly on our (the Smith company) payroll," but that appears to be covered by the agreement. J. R. Cantrall explained that "the job was financed" by the Smith Company and that Company "kept" the payroll records and other records relating to the job. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Moving and Installation Job This job involved first the moving of the machinery. Regular employees of the Western Waxed Paper Company "took loose the old plant" and "partially dis- mantled" some of the machines but most of the machinery was left intact. It was at this point Respondents took over and their job commenced. The machinery consisted of many machines of various kinds, such as waxing, rolling, and bag machines, and solvent coaters, varying in size from "small machines" weighing 500 to 600 pounds, to machines weighing several tons, the heaviest being about 11 tons. One machine was 35 feet in height. The Cantrall Company furnished most of the equipment used in the loading, transporting, and unloading operation. The loading and unloading was done by "skilled men" who were listed on the payroll as "iron workers." 7 At the new plant this machinery which had been moved from the old plant and "two or three new pieces" was installed. The erec- tion, fitting, and installation of the various and numerous machines at the new plant involved the "setting up" of the machines which had been "taken down" to facilitate the moving, the proper location of each machine in relation to center lines previously established by engineers, "setting on proper grade level and elevation," "delicate alignment and leveling," all of which required the services of mechanics skilled in that kind of work, and the use of "precision instruments" such as micrometers, dial, and other types of gauges, various delicate and exact levels, and leveling procedures, and hand tools. This installation and alignment work involving mechanical skill and experience is a type of work done by both the members of millwright locals, which are units of the Carpenters Union, known as millwrights, and members of the International Association of Ma- chinists, known as machinists. Hughes, Cantrall's superintendent, went- on the payroll for this moving and installation project, as superintendent of the job, on February 9, 1950. All the mechanics thereafter employed on the erection, setting up, installation, and alignment of the machinery at the new plant, above described, were listed on the payroll as "millwrights" and all were members of the Millwrights Union. What Smith terms "the first physical work" on the machinery moving and installation job commenced, he said, the (work or payroll) week ending March 1, 1950. Previous to that one millwright had worked on February 13 and part of February 14. -The next appearance of a millwright on the payroll is February 24 when O. Sharplin was hired as a millwright foreman. On February 27 two additional millwrights were hired. From that date to and including May 24, on which date the erection and installation work being done by the millwrights was com- pleted, millwrights were continuously employed, the number listed on the pay- roll fluctuating as is illustrated by the following taken from the payroll: Members of the Millwrights Union working as of March 1, 15; March 15, 11; March 22, 13; April 5, 17; April 19, 18; April 26, 18; May 11, 17; May 17, 10; and May 24, 6.# In addition to Superintendent Hughes, a timekeeper, two engineers, two to three truck drivers, two or three carpenters, a cement finisher, three to six laborers, and a varying number of ironworkers 8 were employed on the job. 7In the moving of heavy machinery or the moving of machinery which " required rig- ging . . . iron workers" were used. 8 The last week shown on the payroll ending May 24, only 1 ironworker, a foreman, worked 1 day. Other than that, the smallest number of ironworkers employed during any payroll week was 4 during the week ending March 1, and the largest number, 17, during the week ending March 8. J. R. CANTRALL COMPANY 799 B. Representatives of the Machinists Union make inquiries of Respondents con- cerning installation job at new plant About November 14, 1949, Floyd E. Smith, representative of the Machinists Union for the 12 southern counties of California and the States of Arizona and Nevada, having heard that the Smith Company had obtained the contract for moving the Western Waxed Paper Company machinery to and installing same at the new plant, went there to inquire concerning the installation work. 'He contacted a Mr. Dailey who was the Smith Company general superintendent in charge of the construction of the new plant building. Floyd E. Smith asked Dailey who had the contract for installing the machinery in the new plant. Dailey stated that he did not know who would be the subcontractor or, at the time, whether the Smith Company would "sub-contract the work out." During the first week in December 1949, Al Smith, business representative of Lodge 311 of the Machinists Union, called at the office of the Smith Company to inquire about this installation project. There he was referred to Bryce Horn, secretary-treasurer of the Smith Company. According to the testimony of Al Smith the following conversation occurred. Smith told Horn who he (Smith) was and that he had heard that the Smith Company was going to install the machinery in the new Western Waxed Paper Company plant. Horn said the Smith Company was the general contractor but at that time he did not know whether the Smith Company would employ the men or sublet the work. Horn then asked Smith "if the machinists were affiliated with the AFL," and Smith replied "not at present." Horn further inquired whether the machinists "were part of the Los Angeles Building Trades Council," and Smith answered "no." Thereupon, Horn stated that the Smith Company "was a signatory to the AGO contract,9 and would probably have to employ people who were members of an organization affiliated with the Los Angeles Building Trades Council." Smith then informed Horn that the Machinists Union had "qualified construction machinists who would be available for the job" and that he "would like to have the opportunity to send" them "for an interview." At this juncture Horn said if machinists were employed on the job "the carpenters and the other [AFL] building crafts would quit." Smith argued that under the law, the Company was "protected" in hiring anyone if deemed qualified to do the work. The conversation was concluded upon the promise of Horn to call Smith when Horn learned "how the men would be hired." Smith left his card with Horn but did not afterwards hear from him. Horn, as a witness for Respondent, recalled Al Smith's visit to the Smith Company office and that they had a conversation about employment on the instal- lation job, but when asked on direct examination if he made the inquiries and statements attributed to him by Al Smith concerning the affiliation of the Machinists Union with the A. F. L. and the Building Trades Council, the AGO contract, the employment only of members of organizations so affiliated, and the probability that other crafts would not work on the job if machinists10 were employed, he said, "there was not any discussion of union stuff at all." 9 Reference here is to a master labor agreement between the Associated General Con- tractors and Building Contractors Association of California and the A. F. L. Building and Construction Trades Unions to which the Los Angeles Building and Construction Trades Council , among others, was signatory . The Smith Company was and "is a member of the Associated General Contractors" which, as one of its functions , "negotiates labor contracts for its members." The Carpenters Union which includes millwrights was also a signatory to this contract and a member of the Los Angeles Building Trades Council . The Machinists was not at that time affiliated with the A. F. L. or any of its Building Trades Councils, and was not, of course, in any way a party to the AGC contract. '"Members of the Machinists Union. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the fact that Al Smith was there as a representative of the Machin- ists Union seeking consideration of members of that Union for work on the installation job, and that, as will later appear, these very same conditions which Smith said Horn advanced as militating against the employment, or considera- tion for employment; of machinists were advanced by both J. R. Cantrall and Jo Cantrall, in that connection, and are indicated by the testimony of H. C. Smith, president of the Smith Company, as well as by a letter he wrote 11 I am constrained •to^credit At Smith's testimony, as being a,substantially accurate account of the conversation as it concerned the union affiliations of the machin- ists being a factor adversely affecting their employment on this installation job. On December 12, 1949, Floyd E. Smith, one of the representatives of the Ma- chinists Union heretofore mentioned, went to the office of the Smith Company and inquired of Horn about this installation work. Horn told him that "Mr. Cantrall was the party who would do the hiring.',' Having learned the office address of the J. R. Cantrall Company in Arcadia, California, Machinists' Repre- sentative Al Smith "drove out to that address late in the evening," of January 10, 1950. The small office building, which had formerly been a garage, is located at the rear of the residence of J. R. Cantrall. A young lady secretary told Al Smith that J. R. Cantrall was not at home and advised him that the "best time to catch him would be early in the morning." Early on the morning of January 12 or 13, 1950, the two Machinists' repre- sentatives, Floyd E. Smith and Al Smith, went to the Cantrall office. After a short wait J. R. Cantrall came from his residence to the office. The following re- port of their conference with J. R. Cantrall on that occasion is that given by the Smiths. .1. R. Cantrall, his secretary, and the two Smiths were the only persons present. Floyd E. Smith did most of the Smith talking. The conference lasted about 30 minutes. The two Smiths introduced themselves as representatives of the Machinists Union and after J. R. Cantrall, in response to their inquiry, stated that "he had a contract with the H. C. Smith Company for installing that machinery," they told Cantrall that they "were interested" in placing some of the members of the Machinists Union on the, job. Floyd E. Smith "pointed out" to Cantrall that the -machinists had and could supply him with experienced men qualified to do that type of work, which is classed with "printing press" installation, and offered to provide him "a list of names" of qualified unemployed members of the Machinists Union whom he could personally call and interview. Cantrall told the Smiths that "he was sorry" they "had come out to his place because he wouldn't be able to do" them "any good." Directing the remark to Floyd E. Smith, Cantrall said : "You as a machinists' representative know that the H. C. Smith Company is a signatory of the AGC agreement between the contractors and the Building Trades Council" and should be "aware of the fact" that that contract "governs the contractors in hiring men for the job." Cantrall also stated that the hiring of machinists, meaning members of the Machinists Union, "could create a lot of trouble" by causing "the building trades crafts to walk off the job." Floyd E. Smith then argued that, under the Act, "no union had the right to tell an em- ployer that he could not hire a certain craft or a certain man because he was a member of another labor organization," and Cantrall said "it was strange to hear a labor organization representative make such a statement." Floyd E. Smith, en- deavoring to emphasize the particular qualifications of machinists for the type of work involved, referred to the precision requirements for the proper alignment "Directed to the Board upon receipt by the Smith Company of the charge herein. General Counsel's Exhibit 6. J. R. CANTRALL COMPANY 801 of machinery. ^ Cantrall 'agreed "with Smith as to that and expressed the'opinion he would have some machinists on the job , former members of the Machinists Union, who were now members of the Millwrights Union. The conversation turned to the ironworkers2 and in this phase of the discussion Al Smith par- ticipated prominently. Cantrall stated he was already having trouble with the ironworkers and the carpenter -millwrights "in deciding who was going to have "jurisdiction over certain work," and "that in his line of work he used a great many ironworkers and he couldn't afford to get in trouble with them." The Smiths told him that the machinists "had worked with ironworkers and riggers on many jobs and were on friendly terms with them" and they "felt the iron- workers would not give him any trouble on this job" if he used machinists on it. Cantrall said he would "check into it," that "he couldn't afford to have any trouble or work stoppages on the job," and if the hiring of machinists would' "create any he couldn't hire machinists." The Smiths further testified that Cantrall "admitted" that "he felt like" he could get better qualified men for the installation work "th'rough the machinists organization than the Building Trades Council but due to the set up" under which "he got his contract he was almost bound to hire people who were members of the Building Trades Council." In answer to Floyd E. Smith's inquiry, Cantrall stated that at that time "nobody had been hired for the job, no superintendent, foremen, or no one," that the hiring would be done by the Cantrall Company, and "that the job would get under way sometime the latter part of February ," as it did. Floyd E. Smith further said that it was agreed that he (Smith) should call Cantrall by telephone at a later date, that on about January 17 he called Cantrall, and that Cantrall told him that the Cantrall Company "definitely was going to use the millwright members of the Carpenters on the job," because "there would be too much trouble and a tie-up of the work if he hired members of the machinists union." During the January 12 or 13 conference the Smiths did not make application for work on behalf of or mention the name "of any particular person" as an applicant. They merely besought Cantrall to give members of the Machinists Union "the opportunity to make application " and to be considered for employ- ment on the basis of their individual qualifications , skill, and experience in the type of work involved. J. R. Cantrall, as a witness for Respondents , made no denial whatever , either specific or general, of the major and more material portions of the Smiths' testimony, the substance of which is above set out. Cantrall 's secretary, who he said was present during this conference with the Smiths , did not testify. The references in Cantrall's testimony to the conversation or discussion on that occasion 'are brief and general. When asked on direct examination concerning the purpose, as stated by the Smiths , of their visit, he said they "wanted an opportunity to furnish men for the , job," that they "had a long conversation about it but . . . there was nothing done about the hiring of men." With the exception of the questions and answers next set out , the foregoing represents J. R. Cantrall's testimony concerning his conversation with the Smiths. The remainder of that phase of his testimony is covered by the following questions asked by Respondents ' counsel, on direct examination , and answers given by Cantrall : Q. Mr. Smith [Floyd] testified that he called you by telephone on or about January 17, and that you said to him that you were definitely going 32 This is an AFL building and construction trades union affiliated with the Los Angeles Building and Construction Trades Council and a signatory to the AGC contract. Iron- workers were used on the moving job as hereinbefore mentioned. 802 DECISIONS OF. .NATIONAL..LABOR RELATIONS BOARD to use millwrights on the job. Did you or did you not make that statement? A. I did not. At that time, it was so long before the job started we had no plans as to what men we were going to use at all. Q. Mr. Smith testified that there was some -conversation with you with respect to making some arrangements with the iron workers. Do you recall such a conversation? A. I believe it was brought out. Q. Did you promise to call anybody with the iron workers to make checks on whether it would be all right to work the machinists with the iron workers? A. I am sure I didn't because I wasn't that interested in getting involved in union disputes. , As to the January 17 telephone call, it will be noted that it is not denied Cantrall did receive a telephone call from Floyd E. Smith on or about that. date, and that Cantrall does not state what the telephone conversation was about . He says he did not make the statement attributed to him by Smith. The undenied state- ments made by Cantrall during the January 12 or 13 conference concerning the hiring of men for the installation job considered and the absence of any denial that Floyd E. Smith did in fact call Cantrall by telephone, as had been previously agreed he should do, inclines me to find that Smith did make such call and that at that time Cantrall said something to the effect that the Cantrall Company would "definitely" use millwrights on the job. The policy and attitude of J. R. Cantrall in reference to hiring as stated by Smiths, being confirmed, as will later appear, by his brother and partner, Jo Cantrall, as well as other matter ap- pearing in the evidence, as that adopted and followed by Respondents and there being no substantial contradiction or denial by Cantrall of the testi- mony of the Smiths concerning their conversation with him, I credit their testi- mony as substantially reflecting what was said on that occasion. C. Applications for work on installation job made by individual members of the Machinists Union including the alleged discriminatees 1. Chester L. Inwall Inwall is a member of the Machinists Union. He has been engaged for more than 25 years in the construction, erection, and repair of the type of machinery involved. Fourteen years of that experience had been with Crown Zellerbach in the "installation of new machinery, and the tearing down, moving, rebuilding, repairing and maintenance of paper machinery of this type." In December 1949 he learned about this prospective moving and installation job and that a Mr. Pierson was a bidder for the job. He went to see Pierson who advised him that the Smith Company had been awarded the contract and suggested he see Dailey, general superintendent for the Smith Company. On December 26 or 27, 1949, Inwall went to the new plant where Dailey was in charge of construction work. Dailey told Inwall he didn't have anything to do with the moving and installation job and suggested that Inwall go to the, Smith Company office and see H. C. Smith, the president of the Company. Thereupon on, the same day Inwall went to Smith's office and talked with H. C. Smith. He told Smith his qualifications and experience and applied for work on this installation job. Smith told In- wall that "he (Smith) did not do any diredt hiring for work of that nature" and "suggested" that Inwall "write him a letter stating" his "qualifications and he would refer it to" whoever was in charge when the work got under way. In- wall wrote and mailed the suggested letter but never received any acknowledge- ment or reply. Sometime in January 1950, Inwall learned of the Cantrall Com- J. R. CANTRALL COMPANY 803 pany's connection with the job and the office address of that company 18 from Al , Smith, business agent of the Machinists' local of which Inwall was a member. Al Smith suggested that Inwall go see J. R. Cantrall. Accompanied by his wife, Inwall went to the J. R. Cantrall house but was there informed by Cantrall's wife that Cantrall was away and would be gone for several days. Two or three days later, in the first part of February, Inwall and his wife again went to the Cantrall home or office, this time accompanied by. four other members of the Machinists Union "in another car," Winchance, Howe, Robertson, and another whose name Inwall could not recall. Al Smith arranged for these men "to go along" with Inwall. They arrived at the J. R. Cantrall home or office about 6 o'clock in the evening. Only Inwall and Wincliance went into the office and met and talked with J. R. Cantrall, the.other three machinists remaining outside in their car. That which follows is a summary of Inwall's testimony about what was said on that occasion. This testimony was not denied or contradicted in any respect by J. R. Cantrall. In fact, J. R. Cantrall, as a witness for Re- spondents, was not interrogated about it. I accord full credit to Inwall' s version of the meeting. Inwall said he and Winchance were in Cantrall's office "probably 30 minutes" and "had a long discussion" with Cantrall. They told Cantrall they were there to make an application for work on the machinery installation job at the new Western Waxed Paper Company plant, described their qualifications and ex- perience in that type of work, and Inwall informed Cantrall that he (Inwall) "was also acting as the spokesman and representative of a group of qualified construction machinists," reference being to the three machinists who had re- mained in their car. However, Inwall did not tell Cantrall that these other men had accompanied him, or where they were, or their number or names. Cantrall. "admitted" that he was "in charge" of the job, and said that "they" had to have a "crew" but had not yet done any hiring as the "work was not quite ready" but "they were going to have to hire men in the near future." In the course of the conference, after Inwall and Winchance had described their qualifications and experience as machinists in connection with the type of machinery involved, the following conversation, set out in Inwall's language, occurred : Mr. Cantrall asked me, "Are you fellows millwrights"? And I said, "Now what do you mean by millwrights? If you mean do we do millwright work, yes. If you mean do we belong to the millwrights organization, no, we are machinists". He said, "Well, in that case, I can't use you" . . . I wanted to know why. He said, "I would like to employ you fellows. I would like to employ machinists. Normally I get better men . . . through the ma- chinists than I do any other place . . . experienced machinists, however, I have a contract on this job which is based on the AGC contract .. . if I were to put you fellows on this job, the carpenters would walk off of it." So, I said ". . . the only reason that you won't consider us for the job is because of our union, affiliations." He said, "As long as you put it that way, that is exactly the way it stands ... I am sorry, but I haven't any choice in the matter." Inwall and Winchance left the Cantrall office and joined their fellow machinists waiting outside and "told them" what Cantrall had said and that "it didn't look like there was any use, under the circumstances, to press the matter further." On cross-examination Inwall was asked : "Did he [Cantrall] tell you whether he was going to hire the men or whether they were going to be hired by one of his foremen or superintendents." He answered : "I don't know. He [Cantrall] v The converted garage in the rear of J. R . Cantrall's residence. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that he was in charge of it." Inwal1 was then asked if he had ever gone to see a Cantrall foreman or superintendent about work on this job. To which he replied that he did not after his conversation with J. R. Cantrall "contact anyone else connected with Cantrall" because "he [Cantrall] definitely turned me down." ' 2. Applications by Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, and Herman P. Stoekl, five of the alleged discriminatees On February 7,'1950, five of the alleged discriminatees herein, Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, and Herman P. Stoekl, conferred at the new plant of the Western Waxed Paper Company with Jo Cantrall, brother of J. R. Cantrall and the other partner in the J. R. Cantrall Company," and at that time made application to Jo Cantrall for work on the machinery installation job. This group of men were highly skilled construction machinists with many years' experience in assembling, erecting, aligning, and installing machinery in large industrial plants, such as General Electric, Edison Company, and West- inghouse, doing the very type of work involved in the installation of the ma- chinery at the new Western Waxed Paper Company plant. Their qualifications were never at any time, prior to or at the hearing, in any way questioned by Respondents nor could such question if advanced find substance in view of the overwhelming and conclusive evidence in that respect. All of these men were unemployed at that time, all were there seeking work in their line, and all were members of the International Association of Machinists. There had been no hiring for the installation job at the time these five men made application,. on February 7, to Jo Cantrall for work. Each of these applicants testified and their testimony stands unrebutted, uncontradicted, and unimpeached. Jo Cantrall did not testify or even appear at the hearing nor did any witness testify on behalf of Respondents concerning this occasion. The testimonies of these five applicants are generally consistent and in substantial agreement and I accord full credit to their account of what was said and done. None of this group of five machinists was acquainted with either of the Cantralls on February 7. Having been informed at the Smith Company office, where the group made inquiry, that "Mr. Cantrall" was at the new plant, they went there seeking him. There a timekeeper on the Smith Company building construction project "pointed Mr. Cantrall out." This "Mr. Cantrall" was Jo Cantrall. The following is a credited composite summary of the testimonies of these five applicants. The five men approached Jo Cantrall in a group. James asked Cantrall if he was "Mr. Cantrall" and he answered that he was. James, or some member of the group, then told Cantrall that they "understood" that he.had a contract "to remove the machinery from the old Western Waxed Paper Company plant and install it in the new plant," and Cantral said "that is right." James 1O introduced himself and told Jo Cantrall that this group of men "are machinists from Long Beach" and "they came up here to apply for jobs on the installation and erection of the machinery in this plant." Cantrall said "J R. Cantrall testified that he was concerned "mainly with contracts , selling . . . and that sort of thing," and that his brother Jo "has charge of all our field operations," and "hires the foremen and superintendents," but that they have "discussions" about current jobs "daily," "discuss things, of course, day by day," and that he (J. R. Cantrall) "knows whats going on on a job." 15 Two of the machinists' group did most of the talking on their behalf, James and Scott. James was the "main spokesman , the rest . . . asked some questions ," and par- ticipated to some extent in the conversation. J. R. CANTRALL COMPANY • 8O5 he could not "use" them, that he was "going to have millwrights on the job." James related something of the experience of the group in the erection- ands' installation of machinery and their qualifications "to do that type of work," and- Scott interposed the inquiry to Cantrall that since they were all experienced machinists why couldn 't Cantrall hire them . Cantrall replied, "because it is, it building trades job," and "H. C. Smith, the general contractor , had a contract with the building trades and if he ( Cantrall ) hired machinists the job would' probably be tied up by having machinists." Cantrall was then asked if- he, would "rather have millwrights" than machinists on that kind of job and if- he was "partial to millwrights." In reply, Cantrall said he would "rather- hire machinists" for the job "because he felt they were more suited to that type of- work," and that "when he tsked for a millwright mechanic they were just as likely to send him a carpenter , but in - dealing with the machinists "he knew what he was getting when he asked for a machinist " and "was quite certain anyone from the machinists-union would be qualified for the work and able to do it." In this connection , Cantrall added that although he would "rather have machinists" on this installation job, he "wouldn't dare employ them," and if- he did "there would be a tie-up ," and "all kinds of trouble." As the conversa- tion drew to a close there was a discussion of the hiring procedure through the Millwrights Union. Cantrall stated that "the work would start in a week of two weeks ," that his foreman would do the hiring "through the millwrights union," that he had a foreman , "a member of the millwrights union," "who he- usually employed on this kind of a job," and that the foreman "would call the millwrights [ union] for the men" to do this installation work. 3. Application of Gilford J. Colvin Colvin is the sixth alleged discriminatee named in the complaint. It suffices to state that Colvin's unquestioned testimony concerning his experience in the erection and installation of machinery of the type involved in this job shows him to be a highly skilled mechanic. He was a member of the Machinists Union and on February 8, 1950, was unemployed . "A day or -two" before that date Stoekl told Colvin that he ( Stoekl ) "understood there was going to be some machinery put in" at the Western Waxed Paper Company 's new plant. On February 8, Floyd Smith , the agent and representative of the Machinists Union, heretofore mentioned , told Colvin and another machinist and member of the Machinists Union, Joseph Smith, that "it would be a good idea," for them "to go out [to the new plant ] and make application for a job." On the same date, Colvin and Joseph Smith went to the new plant . There a Smith Company book- keeper told them that Hughes , the Cantrall superintendent, was doing the hiring- but that Hughes was not at the plant at that time and suggested they call the Cantrall office by telephone which they did and were informed that Hughes was at the Cantrall storage and equipment yard in Compton . They then , on the same date, went to the Cantrall yard and inquired for and were directed to Hughes. Colvin alone testified about the conversation and discussion with Hughes and Jo Cantrall which followed . His testimony was not contradicted, denied, or impeached in any particular. Neither Hughes nor Jo Cantrall testified, or even appeared, at the hearing. The cross-examination of Colvin did not in the least impair his credibility . I, therefore , accept and credit his version , which follows, of what occurred and what was said on that occasion. Hughes identified himself and Colvin and Joseph Smith "introduced " them- selves and told Hughes they were machinists "looking for employment" on the machinery installation job at the new Western Waxed Paper Company plant... 974176-52-vol. 96-52 806 DECISIONS OF NATIONAL LABOR ' RELATIONS, BOARD Hughes said : "Well , just a minute and I will call Jo over here" and then "called a gentleman over whom he introduced as Jo Cantrall." Colvin and Smith then "repeated" their "requests" for employment on the installation job to Jo Can- trall . Hughes remained and was present throughout , and participated to some extent, in the conversation. Cantrall told Colvin and Smith that "they weren't hiring anyone at the time," whereupon Colvin said : "At least we have our applica- tions for employment in early." Jo Cantrall then "informed" them that unless they were members of the Millwrights Union he could not hire them. They asked Cantrall why he wouldn't hire any machinists , and Cantrall replied that he was afraid that if he hired machinists the Building Trades would "close down the job" because the Machinists Union was not affiliated with the Building Trades. Both Hughes and Jo Cantrall "expressed a desire to hire machinists" but said "they couldn 't and wouldn't go against the policy set by their general contractor," the Smith Company, that "they had their orders and couldn't go against them," and Cantrall "made mention of the fact he was told if there was any labor trouble on the job he would lose his contract." On February 28, 1950, Colvin "stopped at the Cantrall Company's yard in Compton and caught Mr. [Jo] Cantrall there." Jo Cantrall "remembered" Colvin. Again Colvin asked Jo Cantrall for employment on the machinery construction work at the new plant. Cantrall told Colvin he "couldn 't and wouldn't hire machinists because" the job "was all tied up with the millwrights and he wanted to avoid labor trouble," and "again' said he would have liked to have hired machinists on the job but was unable to do so." 4. Applications renewed by letters Subsequent to the applications for employment on the installation job made in, person by the six alleged discriminatees named in the complaint , as herein- above set out, each renewed and supported his application by a letter to the Cantrall Company. Letters written by James, Stoekl , and Scott were dated February 13, that of Chunas, February 14, and the Colvin and Turnbow letters were undated ; however, apparently all were received at the Cantrall Company office on February 15. The letters , which were put in evidence , were individually written and are variously worded ; however, they are of the same general tenor. In each instance the writer recited something of his experience and qualifications as a machinist in the erection and installation of industrial machinery and made application for employment on the machinery installation job at the new Western Waxed Paper Company plant. Colvin 's letter, while directed to J. R . Cantrall Company, noted "Attention Mr. Hughes , foreman," and reminded Hughes that he (Colvin ) had previously made application to Hughes and Jo Cantrell for such employment, in person, at the Cantrall yard in Compton on February 8. D. Letter of H. C. Smith Company to National Labor Relations Board Under date of April 10, 1950, the H. C. Smith Company, by H. C. Smith, its president, wrote a letter to the Board acknowledging "receipt of a copy of the charge" filed herein . The latter "categorically" denies "that we [the Smith Company] have denied work to any member of any labor organizations because of their activities in behalf of any specific organization ," and states : We are members of Associated General Contractors and signators to the Master Agreement with the Federated Building Trades covering all phases of construction and in all respects we have followed the terms of this master agreement in our employment of any personnel required on any of our jobs. J. R. CANTRALL COMPANY 807 E. Only members of the Millwrights Union hired on the machinery installation job The hiring of mechanics to do,the machinery installation work, all listed on the payroll as millwrights, commenced with the hiring of O. Sharplin, as a mill- wright foreman, on February 24, 1950, and from that time to the end of the installation work on about May 24, a varying number of "millwrights" were .employed, as heretofore noted, in the installation of the machinery at the new plant. On February 25, the next day after his name first appeared on the payroll listed as a "millwright foreman," Sharplin talked with Norman Parker, business agent for the Millwrights Union, "about employing" millwrights on the Western Waxed Paper Company job. The payroll lists three as "millwright foreman," O. Sharplin, A. Taulburt, and F. Marrs. These foremen were members of the Mill- wrights Union. The records of the Millwrights Union show that Sharplin "ordered in writing" two millwrights on February 25, "called for" two "in writing" on March 1, "called for" four on March 3, "called in put to work" two on March 7, "requested" two on March 21, and "called for" two on April 4, and that Marrs "called for" two on April 13. All of the mechanics, including the three foremen, employed on the machinery installation job were members of the Millwrights Union. J. R. Cantrall said that his "brother [Jo Cantrall] has charge of all" of the Cantrall Company's "field operations" and "hires the foremen and superintend- .ents," that Hughes is the Cantrall Company's "general superintendent . . . and has charge of all our foreman but Jo hires the foremen," that, referring to this moving and installation job, "the superintendent Hughes manned the whole job," that subject to Jo Cantrall's approval Hughes "chose the foremen most of them from our organization," and the foremen "chose their own men." Conclusions On the merits of the alleged unfair labor practices, Respondents' counsel questions the good faith of the applications made by the six alleged discriminatees and other members of the Machinists Union, and in effect charges that the two Smiths, agents and representatives of the Machinists Union, and the various members of the Union who made personal application to J. R. Cantrall, Jo Can- trall, and the Cantrall superintendent, Hughes, were engaged in a "scheme" to ob- tain first an illegal "closed-shop" on the machinery installation job on behalf of the members of the Machinists Union and, failing that, to obtain evidence with which to support a charge of unfair labor practices against Respondents. The evidence shows that both of the Smiths were fully aware of the proscription against a "closed-shop" made by the National Labor Relations Act, and in fact used it as an argument against the hiring policy of the Smith Company and the Cantralls announced by Respondents at the first contact and thereafter adhered to throughout, that, in substance, they would not hire any mechanics on the in- stallation job who were not members of the Millwrights Union, and that they %%(juid not and could not hire anyone who was a member of the Machinists Union. Al Smith invoked the Act in his conference with Horn, secretary and treasurer of the Smith Company, in December 1949, when Horn told him that the Smith Company as a signatory to the AGC contract would probably employ, on this moving and installation job, only people who were members of organiza- tions affiliated with the Los Angeles Building Trades Council. Again when Floyd E. Smith and Al Smith called on J. R. Cantrall, on January 12 or 13, 1950, Floyd E. urged the provisions of the Act against J. R. Cantrall's position that "because of the set up under which he [the Cantrall Company] got his con- tract he was almost bound to hire" only "people who were members of the Building Trades Council." His reference in this particular instance was to the 11 i 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moving and installation job as a whole. The context of the conversation, as well as the many other statements of Respondents' agents appearing in the evidence, demonstrates that their policy as to the machinery installation work was to restrict the hiring of mechanics to do that work to members of the Millwrights Union. At most the Smiths sought consideration of qualified un- employed machinists for work on this installation job when the hiring was done. They offered to supply lists of such men and besought Respondents to interview them as to their individual qualifications for the work and not to follow a policy of restricting the hiring-to members of any particular labor organiza- tion. J. R. Cantrall described this attitude on the part of Floyd E. Smith as a "strange" position for a labor representative to take. As has been found the evidence shows conclusively, and without question at any time, that Inwall, who is not named in the complaint, and the six appli- cants therein named, were and are qualified mechanics, particularly skilled and experienced in the very type of machinery erection and installation in- volved on this job. All were unemployed at the time they made application and unfortunately for them, so far as this job was concerned, all were members of the Machinists Union. I perceive no impropriety whatever or color of illegality on the part of the six unemployed machinists named in the complaint, nor on the part of Inwall in going to the J. R. Cantrall office, as Inwall did, or to the job site, as did the group of five on February 7, or to the Cantrall yard, as Colvin did on February 8 and 28, and applying for work in their line, for which they were peculiarly qualified and which they knew would be, and in fact was, available within a matter of a few weeks at most, although both a Smith Company representa- tive and J. R. Cantrall had previously told the representatives of their union that they (Smith and Cantrall Companies) would not hire any members of the Machinists Union on the installation job, and although-the, actual hiring had not at the time commenced, nor in their union representatives, the two Smiths, seeking consideration of members of the Union for such employment. No show- ing was attempted nor were there any circumstances indicating that the appli- cants had no intention of accepting work if it had been offered. It may be that they had little expectation that they would get jobs, but, on the other hand, in the interim since Al Smith had talked with Horn, and the two Smiths with J. R. Cantrall, Respondents may well have reflected upon their hiring policy as announced or declared upon those occasions, and have pondered, or been ad- vised concerning, the provisions of the Act, and have revised, modified, or altered that policy accordingly. Moreover, as was aptly observed in the Inter- mediate Report in A. B. SwLnerton, et at., 94 NLRB 1079, these applicants and their Union "had every right to test the employment policies of the Respondents ... and their having done so does not impugn the bona fides of the applications where these applications were made [as in this instance] by actual job seekers." It is said that when the group of five, Chunas, James, Turnbow, Scott, and Stoekl, made application to Jo Cantrall at the new plant on February. 7, James was the only one who gave his name to Cantrall. It seems that from this an attempt is made to imply that so far as Jo Cantrall knew only James made an application on that occasion The testimony was that the five men gathered in a close group about Cantrall, that while James introduced himself and acted as the "main spokesman" Scott also participated actively in the conversation and others of the group interposed inquiries and made observations, and that in the beginning James informed Jo Cantrall that "this group of men are ma- chinists from Long Beach" and "they came up here to apply for jobs on the J. R. CANTRALL COMPANY 809 installation and erection of machinery in this plant." James' description of, their qualifications and experience referred to the group as did the discussion of their union affiliations, and Jo Cantrall's refusals to consider any members of the Machinists Union for employment, and his remarks and statements in that connection, were not directed or addressed to James or Scott or any other indi- vidual member of the group but referred and applied to them as a group.. Quite clearly there was not and could not have been any misunderstanding on the part of Jo Cantrall that all the men in the group were. machinists applying for work on the machinery erection and'installation job at that plant. No.particu- lar formality is required to make application for employment and the action of this group of five machinists, in this instance, undoubtedly constituted, and was clearly so understood by Jo Cantrall, an application by and on behalf of each of the five men for work on the machinery installation job which Cantrall informed them would commence in a week or 2 weeks or in the near future and for which no one had at that time been hired. In view of Jo Cantrall's un- qualified statements and pronouncements concerning the hiring, addressed to the group, to the ultimate effect that regardless of their qualifications and fitness to do the work and his own desire to hire machinists for that particular work, no one who was a member of the Machinists Union would be hired and that only members of the Millwrights Union would be used in the installation job, it would have been a futile and, meaningless gesture for each member of the group to then step forward, announce his name, and make a formal application, and it was not necessary or required that he do so in order to establish his status as an applicant. The evidence shows without any question, and I so find , that Colvin made application to Jo Cantrall and Hughes at the Cantrall yard on February 8, renewed same by letter referring to his previous application in person, which letter was received at the Cantrall office on February 15, and again in person to Jo Cantrall at the Cantrall yard on February 28, and that both on February S and 28, Jo Cantrall, with Hughes' concurrence on February 8, definitely in- formed Colvin that while he would like, and would prefer, to hire machinists for this installation job, he could not and would not hire anyone for that work who was not a member of the Millwrights Union, that that was the policy "set" by the Smith Company, the general contractor, and that "they [the Cantralls] had their orders" to that effect, and "couldn't go against them." I find, therefore, that each of the applicants named in the complaint, Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, Herman P. Stoekl, and Gilford J. Colvin, were bona fide seekers of employment on the machinery erection and installation job and made bona fide applications for such employ- ment, as aforesaid , and that their applications were rejected and they were refused such employment by the Respondents herein because they were members of the International Association of Machinists and were not members of the Millwrights Union to the members of which Union employment on the machinery installation job was restricted. The General Counsel does not attack or question the-validity or legality under the Act of any of the provisions of the A. G. C. contract so frequently referred to in the statements and declarations made by Respondents' agents and repre- sentatives concerning their hiring policies, and that contract is not in issue in this proceeding. Assuming that the contract provided for no more than a union shop upon compliance with Sections 8 (a) (3) and 9 (e) of the Act, nonetheless the determining fact here is that in practice the Respondents maintained a closed shop on this moving and installation job employing, as is established by their own declarations, admissions, and acts, only members of unions affiliated 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Los Angeles Building Trades Council, and as to the particular phase of the job here involved, the machinery installation work, only members of the Millwrights Union. Respondents say that at the dates these six men applied for employment the hiring of mechanics for the installation work had not commenced and that such jobs were not then available and did not become available until a later time, and that there is no showing that when the hiring for this job commenced that they went to the job site where the hiring was being done and made application to the foreman on the job who they had been told would do the hiring. They had been told positively and unequivocally, at the time their applications were made and rejected, that the Respondents' fixed hiring policy for this job pre- cluded their employment, that Respondents would not hire anyone who was a member of the Machinists Union, as they were, and would hire only members of the Millwrights Union for this work, and that such hiring would be done, as it was done, through the Millwrights Union,by Respondents' foremen who would themselves be members of the Millwrights Union. In these circumstances, hav- ing made their initial application and having been informed of Respondents' dis- criminatory hiring policy "further applications would have been futile" and they ,,were not required to continue making the useless gesture of reapplying in order, to establish that they were victims of Respondents' discriminatory hiring policy." A. B. Swinerton et al., 94 NLRB 1079, and N. L. R. B. v. Daniel Hamm Drayage Company, Inc., 185 F. 2d 1020, 84 NLRB 458, 460. Under the facts found, discrimination, within the meaning of the Act, against the six men named in the complaint is clearly established, and, as the Board has recently held in like situations, the Act was first violated by Respondents when the discriminatees "initially applied" and were told that membership in the Millwrights Union was an indispensable condition of employment even if no jobs were then available. "By imposing such an unlawful condition," these applicants "were discriminatorily denied an opportunity to be considered for em- ployment by the Respondents. This method of discrimination is of a continuing nature and quite obviously precluded their actual employment when jobs became available" within the period of at most 3 weeks later and at intervals there- after for approximately 3 months. A. B. Swinerton et al., supra, and Arthur G. McKee and Company, 94 NLRB 399. I, therefore, find that by refusal to employ Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, Herman P. Stoekl, and Gilford J. Colvin, because of their membership in the International Association of Machinists or their lack of membership in the Millwrights Union, Respondents discriminated against them, and each of them, in regard to their hire and tenure of employ- ment, thereby discouraging membership in the Machinists Union while encourag- ing membership in the Millwrights Union, in violation of Section 8 (a) (3) of the Act, and also thereby Respondents did interfere with, restrain, and coerce applicants for employment and/or employees in the exercise of their rights guar- anteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondents, and each of them, 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. J. R. CANTRALL COMPANY 811 V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices- within. the meaning of Section 8 (a) (1) and (3) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondents, J. R. Cantrall and Jo G. Cantrall d/b/aa J. R. Cantrall Company and H. C. Smith Company, acting together in the course- of a joint enterprise, discriminated against Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, Herman P. Stoekl, and Gilford J. Colvin, in regard to their hire and tenure of employment by refusing, under the circum- stances shown by the evidence, to hire them, and each of them, on the machinery erection and installation work at the Western Waxed Paper Company plant ins Los Angeles, California. The job was completed in May 1950, several months before the hearing herein, and for that reason I shall not recommend that the- discriminatees be offered employment or any action in the nature of reinstate- ment. However, I shall recommend that the Respondents make whole the said Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, Herman P. Stoekl, and Gilford J. Colvin, and each of them, for any loss of earnings suffered by them by reason of Respondents' discrimination against them, by payment to each of them of a sum of money equal to that which he would have earned as wages from the date of the refusal of employment to the date the employment normally would have terminated, absent discrimination, less his net earnings 1° during such period with the back pay computed in the manner established by the- Board in F. W. Woolworth Company, 90 NLRB 289, and the Respondents and each of them, upon request, making available to the Board, or its agents, for exami- nation and copying, all records necessary to a determination of the amount of- such back pay due. Back pay should be computed only from such time as work became available and none of the discriminatees who was unable or unwilling: to accept employment at such time is entitled to back pay. A. B. Swinerton et al., supra. The unfair labor practices found are of such character and scope that, in. order to insure applicants for employment and employees their full rights guaranteed them by the Act, I shall recommend that Respondents, and each: of them, cease and desist from in any manner interfering with, restraining,- or coercing employees or applicants for employment in the exercise of any of' the rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire .record in the case, I make the following: CONCLUSIONS OF LAW 1. International Association of Machinists, and its local Lodge #1235; Mill- wright and Machinery Erectors, and its Local 1607, United Brotherhood of Carpenters and Joiners of America, A.F.L.; and the Los Angeles Building and Construction Trades Council ; and each of them, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Walter A. Chunas, Jack C. James, Wendell L. Turnbow, A. T. Scott, Herman P. Stoekl, and Gilford J. Colvin, thereby discouraging membership in International Association of Machinists, and encouraging membership in labor organizations affiliated with the Los Angeles Building and Construction Trades Council, in- 16 Crossett Lumber Company, 8 NLRB 440, 497-98. :812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluding Millwright Locals of the United Brotherhood of Carpenters and Joiners of America, A.F.L., Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees and applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] HARRIS PRODUCTS COMPANY and INTERNATIONAL UNION, UNITED AUTO- MOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER . Case No. 8-RC-1300. October 15, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held' before Carroll L. Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer and the Intervenor, Mechanics Education So- ciety of America, Local 59, contend that this proceeding is barred by a contract covering the employees whom the Petitioner seeks to represent. The Petitioner contends that the contract bar doctrine is inapplicable upon the ground that a schism occurred within the bargaining representative at the plant for which the Petitioner seeks certification. The Employer operates two plants, one in Cleveland, Ohio, and the other in Milan, Ohio. The plant at Milan, which is the only plant involved in this proceeding, is located about 55 miles away from the Cleveland plant. On July 13, 1950, following a card check, the Employer and the Intervenor entered into a 2-year contract cover- ing all production and maintenance employees at both the Cleveland and Milan plants.' It is this contract which the Employer and the Intervenor contend is a bar to this proceeding. 1 The original expiration date of the contract was July 13, 1952. However, on November S, 1950, the Employer and the Intervenor entered into a supplemental agreement which, among other things, extended the expiration date of the contract to July 13, 1955. 96 NLRB No. 125.