Port Chester Electrical Construction Corp.

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen, professional employees, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Shoe Workers of America, CIO, was on October 11, 1950, and at all times material thereafter has been, and now is, the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on November 22, 1950, and at all times thereafter, to bargain with United Shoe Workers of America, CIO, as the exclusive representative of the employees in the above-described appropriate unit, the Respondent has en- gaged, and is engaging, in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in the hire and tenure of employment of Simonne Trem- blay, Lea Plessis, Bertha Gaudette, and Germaine Nadeau by either discharging or laying off each of them thereby discouraging membership in the United Shoe Workers of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By dominating and interfering with the formation and administration of and giving financial and other assistance to the Open Door Committee, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. 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.] PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION and JOHN TAY- LOR and WESTCHESTER-FAIRFIELD CHAPTER, NATIONAL ELECTRICAL CONTRACTORS' ASSOCIATION, INC., PARTY TO THE CONTRACT LOCAL UNION 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORK- ERS, AFL and JOHN TAYLOR and WESTCHESTER-FAIRFIELD CHAPTER, NATIONAL ELECTRICAL CONTRACTORS' ASSOCIATION, INC., PARTY TO THE CONTRACT. Cases Nos. 2-CA-1115 and 2-CB-367. December 10, 1951 Decision and Order On July 11, 1951, Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair 97 NLRB No. 59. PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 355 labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report; the Gen- eral Counsel also filed a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing,and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications and 'exceptions noted below? . We agree with the Trial Examiner that the Respondent Company and the Respondent Union respectively violated Section 8 (a) (1) and 8 (b) (1) (A) of the Act by retaining an unlawful closed-shop provision in their contract,2 which they neither intended to,3 nor did in fact, enforce.4 Such an unlawful provision serves no less as a re- straint on employees' right to refrain from joining an organization than if the parties intend to enforce it where, as here, there is no evi- dence that the employees were informed that the closed shop clause, which theretofore had been in effect, would no longer be operative. However, in view of the absence of an intention to enforce the pro- vision,in question, we find, contrary to the Trial Examiner, that its continued existence in the contract was not also violative of Section 8 (a) (3) and 8 (b) (2) of the Act. This is so because, as the majority decision in the Monolith case, supra, pointed out in a comparable situa- tion, no discriminatory conditions of employment were actually thereby created. Our dissenting colleague, however, would not apply the principle of the Monolith decision solely because the record in his view does not contain competent evidence that the Respondents did not intend to enforce the closed-shop provision. He would thus dis- regard the Trial Examiner's contrary credibility findings, based on ' The Trial Examiner at one point in the Intermediate Report inadvertently interchanged the fikures concerning an earlier layoff in January 1949, when three union men and five nonunion men were laid off. 2 Childs Company et at., 93 NLRB 281; cf. New York State Employers Association, Inc., and Red Star Express etc , 93 NLRB 127. In view of the fact that the charge was served on January 6, 1950, we date the Respondents' unfair labor practices in accordance with Section 10 (b) of the Act from July 6, 1949, and not from July 4, 1949 , as the Trial Examiner did. 'Monolith Portland Cement Company, et at , 94 NLRB 1358. 4 Julius Resnick, Inc., 86 NLRB 38; cf. Hager and Sons Hinge Manufacturing Company, 80 NLRB 163 . Like the Trial Examiner , we And that the preponderance of the evidence does not establish that the employees named in the amended complaint were discrimi- natorily laid off pursuant to the closed -shop provision in question . Moreover, we find, as did the Trial Examiner, that the fact that the Company and other members of the Association utilized the employment facilities of the Union on a nonexclusive basis, because these facilities best suited their needs for obtaining experienced help on short notice, does not prove that the parties were operating under the closed-shop provision or were engaging in'prohibited conduct. The Hunkin-Conkey Construction Company, 95 NLRB 433; Ameri- can Pipe and Steel Corporation, 93 NLRB 54. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of witnesses some of whom our colleague credits in resolving other issues in the case. As the Trial Examiner's findings in this re- spect are consistent with the clear preponderance of all the relevant evidence, we see no reason to disturb them.5 Accordingly we shall dismiss the 8 (b) (3) and 8 (b) (2) allegations Of the complaint. 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 orders that : I. The Respondent, Port Chester Electrical Construction Corpora- tion, Port Chester, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Continuing to include in its collective bargaining contract with the Respondent, Local Union 501, International Brotherhood of Elec- trical Workers, AFL, or with any other local organization, any pro- visions which require membership in such union as a condition of employment or which require the Respondent Company to give prefer- ence in employment to members of such union, except as authorized in Section 8 (a) (3) of the Act. (b) In any other like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all 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) Post copies of the notice attached hereto as Appendix A 6 at its offices at Port Chester, New York, and at all other places where notices to employees are customarily posted. Copies of the such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent Company's representative, be posted by the Company immediately upon receipt thereof and maintained by it for at least sixty (60) consecutive days 5 Cf. N. L. R. B. v. Universal Camera Corp., 190 F. 2d 429 (C. A. 2), on remand from Universal Camera Corp. v. N. L. R. B., 340 U. S. 474. 6 In 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." PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 357 thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices- are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order as to what steps the Respondent Company has taken to comply herewith. II. The Respondent, Local Union 501, International Brotherhood of Electrical Workers, AFL, its officers, representatives, agents, such cessors, and assigns shall : 1. Cease and desist from : (a) Continuing to include in its collective bargaining contract with the Respondent, Port Chester Electrical Construction Corporation, or with any other employer, any provisions which require member- ship in the Respondent Union as a condition of employment, or which require such employer to give preference in employment to members of the Respondent Union, except as authorized in Section 8 (a) (3) of the Act. (b) In any,like or related manner restraining or coercing employees of Port Chester Electrical Construction Corporation, or of any other employer, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid and pro- tection, 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 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) Post at its offices in Mount Vernon, New York, copies of the notice attached hereto as Appendix B.7 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, de- faced, or covered by any other material. (b) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto as Appendix B, for posting, if the Respondent Company is willing, at the Company's offices at Port 'See footnote 6. 986209-52-vol 97--24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chester, New York, and at all other places where notices to employees are customarily posted. (c) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order as to what steps the Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, against the Respondents be, and it hereby is, dismissed insofar as it alleges that the Respondents discriminatorily discharged John Taylor, Adrian Boisfeuillet, and Maxie Sachuk, in violation of Section 8 (a) (1) and (3) of the Act, and insofar as it alleges that the Respondents kept in existence the illegal union-security provisions of a contract, in viola- tion of Section 8 (a) (3) and 8 (b) (2) of the Act. MEMBER REYNOLDS, dissenting and concurring in part : I disagree both legally and factually with the majority's conclusion that the record permits a finding that the parties did not intend to enforce the unlawful union-security agreement and that therefore under the holding of the Monolith case there was no 8 (a) (3) or 8 (b) (2) violation. On June 2,1947, the Association, on behalf of its members, including the Respondent Employer, entered into a closed-shop contract with the Respondent Union for a term ending June 30, 1948, and yearly there- after. unless changed in the manner therein provided. On June 1, 1948, the parties executed an amendment to this contract, effective July 1, 1948, containing a severability clause and a statement that in the event the union-security clause of the original contract be adjudged unlawful, either party may elect to reopen for the purpose of negotiat- ing a new union-security provision. On June 1, 1949, the parties executed a second amendment, effective July 1, 1949, so as to change the modus operandi of the original union-security clause from "the office of the Union" to the "Business Manager," but without in any manner altering its inherent illegality. According to the very terms of the contract and amendments thereto, and as the majority apparently concedes, there was in existence at all material times an unlawful union-security clause which contractually obligated the parties to maintain discriminatory hiring practices. In accordance with established precedent, such a contractual arrange- ment constitutes per se unlawful discrimination, within the meaning of Section 8 (a) (3) and 8 (b) (2) of the Act," as found by the Trial Examiner. The majority, however, refuse to make such a finding because of their reliance on the, testimony of the contracting parties that prior to extension of the amendatory contract on June 1, 1948, they agreed not to enforce the unlawful union-security clause. The g Rockaway Newa Supply Company, Inc., 94 NLRB 1056 ; New York, State Employers Association, Inc., and Red Star Empress Lines of Auburn, Inc., 93 NLRB 127. PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 359 short answer to the majority's position is that as this testimony is directly in conflict with the express and unambiguous terms of the original written contracts as amended on June 1, 1948, and June 1, 1949, its use by the majority is proscribed as a matter of law by the well-established parol evidence rule .9 But even if this evidence be deemed legally competent, I am at a loss to understand how the majority can give controlling weight to such self-serving testimony. In' my opinion, the probative value of this testimony evaporates beyond use when viewed in the light of the fact that subsequent to this claimed agreement not to enforce, the parties on two successive occasions dealt with union security in written instruments and not only failed to incorporate therein the alleged secret understanding but specifically acknowledged and confirmed the continued existence of the original union-security provisions. I would therefore find that the existence of this unlawful union- security contract also constitutes a violation of Section 8 (a) (3) and 8 (b) (2) of the Act. In all other respects, I concur in the majority decision. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : The union-security provisions of our contract with LOCAL UNION 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORK- ERs, AFL, are null and void. WE WILL NOT include in our contract with the aforesaid union, or with any other union, any provisions which require member- ship in such union as a condition of employment, or which require us to give preference in employment to members of such union, except as authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted- activities for the purpose of collective bargaining or other mutual aid or protection, Williston on Contracts (Rev. Ed.), Sec. 634; Restatement, Contracts, See. 241. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. PORT CHESTER ELECTRICAL CON- STRUCTION CORPORATION, Employer. Dated -------------------------- By ---------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days and must not be altered, defaced, or covered by any other material. I Appendix B NOTICE To ALL MEMBERS OF LOCAL UNION 501, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, AND To ALL EMPLOYEES OF PORT CHESTER ELECTRICAL CON- STRUCTION CORPORATION 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 : The union security provisions of our contract with PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION are null and void. WE WILL NOT include in our contract with any employer any provisions which require membership in our union as a condi- tion of employment, or which require the employer to give pref- erence in employment to our members, except as authorized by Section 8 (a) (3) of the Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees Of PORT CHESTER ELECTRICAL CONSTRUCTION CORPORA- TION, or of any other employer, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 36]. a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. LOOAL UNION 501, INTERNATIONAL BROTHERHOOD or ELECTRICAL. WORKERS, AFL, Labor Organization. Dated ------------------ By -------------------------------- (Representative ) ' (Title) This notice must remain posted for 60 consecutive days and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon separate charges duly filed by John Taylor, an individual, herein called the charging party, the General Counsel of the National Labor Relations Board,' on behalf of the Board, by the Regional Director of the Board for the Second Region (New York, New York), issued a consolidated complaint on January 22, 1951, against Port Chester Electrical Construction Corporation, herein called the Respondent Company or the Company, and Local Union 501, International Brotherhood of Electrical Workers, AFL, herein called the Respondent Union or the Union,' alleging that the Respondent Company had engaged and was 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, as amended (Public Law 101, 80th Congress, 61 Stat. 136), herein called the Act, and that the Respondent Union had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A), and (2) and Section 2 (6) and (7) of the Act. Copies of the charges, the complaint, the order consolidating the cases, and notice of hearing were duly served upon the Respondents, the charging party, and upon West- chester-Fairfield Chapter, National Electrical Contractors' Association, Inc., herein called the Association, or party to the contract. With respect to the unfair labor practices, the complaint as amended at the hearing alleges in substance that: (1) The Respondent Company and the Re- spondent Union are and have been since June 7, 1947, parties to collective bar- gaining contracts negotiated between the Respondent Union and the Association, of which the Respondent Company is a member; (2) the Respondent Union and the Respondent Company have, since July 4, 1949, restrained and coerced the employees of the Respondent Company in the exercise of rights guaranteed by Section 7 of the Act, by enforcing the collective bargaining contracts in force since that date, which contracts have since said date contained illegal union- security provisions; (3) the Respondent Union has, pursuant to the aforesaid contracts, demanded and required of the Respondent Company the discharge of all employees who were not members of the Respondent Union ; (4) as a result of the aforesaid demand and requirement, the Respondent Company, on or about September 23, 1949, discharged employees John Taylor, Adrian Boisfeuillet, and Maxie Sachuk, and has since failed and refused to reinstate them, for the reason that the said employees were not members of the Respondent Union; and (5) i The General Counsel and his representative at the hearing are herein referred to as the General Counsel ; the National Labor Relations Board as the Board. 2 At times the Respondent Company and the Respondent Union are herein referred to collectively as the Respondents. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union-security provisions of the contract in effect between the Respondent' Company and the Respondent Union are in violation of the Act, and interfere with, restrain, and coerce the employees of the Respondent Company in the exercise of rights guaranteed by the Act. In their answers, duly filed, the Respondents deny the commission of any unfair labor practices. The Association, named in the complaint merely as a "party to the contract," and not as a party respondent, also filed an answer, in which it denied that it possessed any knowledge or information sufficient to form a belief as to the allegations of the complaint above summarized, and de- manded that the complaint be dismissed. Pursuant to notice, a hearing was held at New York, New York, on various dates between March 19 and May 3, 1951, before Isadore Greenberg, the under- signed Trial Examiner, duly designated by the Chief Trial Examiner of the Board. The General Counsel, the Respondents, and the Association were repre- sented by counsel; the charging party appeared in person . All parties were afforded full opportunity to participate in the hearing, to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On the second day of the hearing a motion by the General Counsel to amend the complaint in several particulars, including the addition of the allegation that employees Adrian Boisfeuillet and Maxie Sachuk (as well as John Taylor, named in- the original complaint), were discriminatorily discharged by the Company at the demand of the Union, was granted over the objection of the Respondents and the Association.3 Subsequently, an adjournment of the hear- ing was granted to enable the Respondents and the Association to prepare to meet the newly added allegations of the amended complaint. At the close of the General' Counsel's case, counsel for the Respondents moved to dismiss the complaint as to Boisfeuillet and Sachuk on the ground that no charge that these employees were illegally discharged was ever filed with the Board, and that the General Counsel was therefore without power to issue a complaint with respect to their discharge. Counsel for the Respondents also argued that in view of the 6-month limitation as to the issuance of complaints contained in Section 10 (b) of the Act, the Board is without power to consider any alleged unfair labor practices with respect to these employees which occurred prior to September 19, 1950, 1. e., more than 6 months prior to the date the motion to amend the complaint was made. A motion was also made by counsel for the Respondents to dismiss the complaint in its entirety on the ground of failure of proof. These motions were denied,' with leave to renew them at the end of the entire case. They were, in effect, renewed by counsel in his brief filed with the Trial Examiner after the close of the hearing. The said motions to dismiss are disposed of by the findings, conclusions, and recommendations made below. A motion by the General Counsel, made at the end of the hearing, to conform the pleadings to the proof with respect to formal matters such as dates, the spelling of names, and the like, was granted without objection. At the close of the hearing op- portunity was afforded all parties to present oral argument to the Trial Exami- ner. This was waived by all but the General Counsel, who was heard in such argument. Opportunity, was also offered all parties to file briefs and proposed findings of fact and conclusions of law with the Trial Examiner. A brief and such proposed findings and conclusions was submitted by counsel for the Re- spondents. • In accordance with the findings of fact and conclusions of law here- inafter made, I rule as follows upon the said proposed findings of fact and conclusions of law as submitted by counsel for the Respondents : The following proposals under the heading, "Findings of Fact," 'are accepted and adopted ; I ' ' See : Cathey Lumber Company, 86 NLRB 157, 158-163. 4 As to Boisfeuillet and Sachuk, see Cat hey Lumber Company, supra. PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 363 through 9; 11 through 23; 26; and 28. The following are rejected : 10; 24; 25 (rejected as irrelevant and immaterial) ; 27; 29 (rejected as irrelevant and immaterial) ; and 30. The following proposals under the heading, "Conclusions of Law," are accepted and adopted : 1; 6 through 9. The following are rejected : 2 through 4 (rejected as irrelevant and immaterial) and 5. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Port Chester Electrical Construction Corporation is, and at all times material herein has been, a New York corporation with its principal office and place of business in Port Chester, New York. It is now and has been continuously en- gaged in the installation of interior and exterior electrical wiring of buildings in the States of New York and Connecticut. During the year 1949, the Respondent Company, in the course and conduct of its business operations, purchased and caused to be transferred and delivered to various sites of housing construction projects located in the States of New York and Connecticut, electrical conduit, copper wire and cable, panel boards, switches, and other materials valued in excess of $250,000, of which approxi- mately 15 percent was transported to said construction projects from States of the United States other than the States of New York and Connecticut. Dur- ing the same period the Respondent Company furnished to customers the above- described materials, and rendered services to them by installing interior and exterior electrical wiring, of a value in excess of $1,000,000, of which approxi- mately 5 percent represented services performed outside the State of New York. The Respondent Company concedes, the other parties do not dispute, and I find, that the Respondent Company is engaged in commerce within the meaning of the Act 6 II. THE LABOR ORGANIZATION INVOLVED Local Union 501, International Brotherhood of Electrical Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, which admits to membership employees of the Respondent Company. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The illegal closed-shop contract It is undisputed e that the Association is composed of a number of electrical contracting companies engaged in the construction industry in Westchester County, New York, • and Fairfield County, Connecticut. The Association repre- sents its members in collective bargaining with the Respondent Union. The Respondent Company is, and at all material times has been, a member of the Association. On or about June 2, 1947, the Association, on behalf of its members including the Respondent Company, entered into a collective bargaining contract with the Respondent Union, to become effective on July 1, 1947, and to remain in effect until June 30, 1948. The contract was by its terms to continue in effect from year to year thereafter, unless either party notified the other at least 90 0 ,9tani8laus Implement and Hardware Company, Limited, 91 NLRB 618. C Unless otherwise indicated, all findings of fact made herein are based upon undisputed evidence. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days prior to June 30 of any year thereafter, of its desire to negotiate changes therein, or unless modified at any time by mutual consent. This contract con- tained the following union-security provisions : Rule 14a. The Employer shall hire only members of the Union in good standing for all electrical work. - b. All such workmen shall be obtained through the office of the Union, but should the Union be unable to furnish the employer with workmen within 48 hours of the time the Union-or its representative-received the re- quest, the Union shall issue temporary working cards to workmen who apply and are recommended by the Employer, until such time as the Union can furnish workmen. Any such workmen shall receive at least the minimum wages under the conditions of this Agreement. The above-described contract was modified by an "amendment" executed on June 1, 1948, which by its terms was to go into, effect on July 1, 1948. This "amendment," in addition to substituting a new wage scale for the one embodied in the previous agreement, also contained the following provision : AnTicLE IV of the agreement is hereby amended to read as follows: Any provision of this agreement adjudged to be unlawful by a -court of competent jurisdiction shall be treated for all purposes as null and void but all other provisions of this agreement shall continue to be in full force and effect except as provided herein. In the event that the union security*pro- visions of this agreement are adjudged to be unlawful by a court of com- ,petent jurisdiction or if the union and the employer jointly find that such union security provisions are invalid as a matter of law, either party to this agreement may elect to reopen the agreement for the purpose of negotiating a new union security provision. On June 1, 1949, a second amendment was executed by the parties, to become effective on July 1, 1949. The following clause was contained therein : Amend Article V. Rule 14b, to read: Rule 14b. All such workmen shall be obtained through the Business Manager, but should the Union be unable to furnish the employer with workmen within 48 hours of the time the Union received the request, the Business Manager may grant permission to workmen who apply and are recommended by the Employer until such time as the Union can furnish workmen. Any such workmen shall receive at least the minimum wage under the conditions of this agreement. The record does not reveal that the union-security provisions of the contract between the parties have been litigated at any time prior to the institution of the present proceeding, or that such provisions have been adjudged to be unlawful by any court or other tribunal. Nor was any showing made that any party thereto has at any time elected to reopen the agreement or that the agreement ever was reopened for the purpose of negotiating a new union-security provision (other than the "amendments" set forth above). It is thus clear that aside from the question of whether the said union-security provisions have been enforced in practice,? the union-security clauses, as amended, continued in exist- ence at all times material herein, as a part of the contract between the parties. The said union-security clauses explicitly require the employer-parties to the 7 The Respondents contend that after the effective date of the so-called Taft-Hartley amendments to the Act, there was a verbal understanding between the parties that the union-security provisions would not be enforced. That issue will be discussed , below. PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 365 contract to "hire only members of the Union in good standing for all electrical work," with the sole exception that when the Union is unable to furnish workmen to the employer within 48 hours after being called upon to do so, the employer may temporarily employ nonmembers of the Union "until such time as the union can furnish workmen." In a word, the contracts above described have at all times contained a provision for a "closed shop." a Such a union-security provision is of course plainly prohibited by the amended Act which was enacted on June 23, 1947, and which became effective on August 22, 1947. Section 8 (a) (3) of the amended Act prohibits an employer from dis- criminating in regard to hire or tenure of employment to encourage or discourage membership in any labor organization with the proviso that an employer may contract with a labor organization to require membership in that labor organiza- tion as a condition of employment on or after the thirtieth day following the be- ginning of such employment, if a majority of the employees have voted to authorize the making of such an agreement. It is obvious that the union-security provision here in question is in violation of the Act whether it be characterized as a closed-shop clause or a preferential-hiring clause, for the said provision neither conforms to the requirement that union membership be required only on or after the thirtieth day of employment, nor is there any showing in the record that the contract was authorized by an election among the employees involved. The Respondents make some point of the fact that the closed-shop provision was legal when the contract of June 2, 1947, was executed, and that Section 102 of the amended Act provides that Section 8 (a) (3) and 8 (b)- (2) thereof "shall not make an unfair labor practice the performance of any obligation under a collective-bargaining agreement entered into prior to the date of the enactment of this Act, . . . if the performance of such obligation would not have consti- tuted an unfair labor practice under section 8 (3) of the National Labor Rela- tions Act prior to the effective date of this title, unless such agreement was renewed or extended subsequent thereto." As we have seen, the contract executed between the parties on June 2, 1947, automatically renewed itself by its terms from year to year unless the parties took the prescribed action to prevent such automatic renewal. With the excep- tion of the amendments set forth above, the parties have at all times since per- mitted the contract to be renewed from year to year, thereby renewing also the illegal closed-shop provisions therein contained. As has been held under similar circumstances, the parties have thus mutually agreed to extend or renew the contract from year to year.9 The savings clause contained in Section 102 of the amended Act thus clearly did not preserve the validity of the closed-shop provision of the contract beyond the original 1-year term of the first contract herein mentioned, namely, the one executed on June 2, 1947, which became effec- tive by its terms on July 1, 1947, and which remained in effect until June 30, 1948. When that contract, by virtue of the automatic renewal clause therein incorporated, was renewed upon its expiration, and from year to year there- after, the illegal closed-shop provision no longer was protected by Section 102 of the Act 1D sin his brief ' (p. 5) counsel for the Respondents states with respect to the contract executed on June 2, 1947, "There is no question but that said agreement contained a so-called 'closed shop' provision. .. . 11 That provision as is herein found, continued to be included in all subsequent agreements between the parties. 'International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 7, AFL, 92 NLRB 755. 10 Ibid. - 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondents also call attention to purported savings or severability clauses included in their various contracts. The agreement entered into on June 2, 1947, contained a paragraph reading as follows : Article IV. Should the Court decide any part of this Agreement to be illegal, the remaining parts shall not thereby be invalidated ; it being the sole intent and purpose of this Agreement to promote peace and harmony in the craft along lawful lines. The "amendment" entered into by the parties on June 1, 1948, which has been set forth above, modified the foregoing article primarily by adding the following language: - In the event that the union security provisions of this agreement are ad- judged to be unlawful by a court of competent jurisdiction or if the union and the employer jointly find that such union security provisions are invalid as a matter of law, either party to this agreement may elect to reopen the agreement for the purpose of negotiating a new union security provision. - The Board has had occasion to pass on the question whether such purported savings clauses are effective to cure otherwise illegal union-security clauses in contracts between employers and unions. Thus, in Reading Hardware Corpora- tion, 85 NLRB 610, 611, it considered the issue whether a similar purported savings clause " rendered the illegal union-security clause under scrutiny ineffec- tive. The Board held : "In the absence of a specific clause expressly deferring application of the union-shop provision, we believe that this clause can only be construed to mean that unless and until a tribunal authorized to interpret and administer the law determines that a particular discharge for nonmembership in the [contracting union] is unlawful, the union-security provisions of the con- tract are fully effective. Moreover, it is immaterial that, in fact, no action has been taken pursuant to the union-security provisions, as the mere existence of an illegal union-security provision acts as a restraint upon those desiring to refrain from union activities." Again in Hsckey Cab Company, 88 NLRB 327, 329-330, the Board was considering the effect of a similar severability clause's upon an otherwise illegal union-security provision in a contract. The Board decided : "We have held in other cases involving severability clauses similar to that con- tained in [the contract under discussion], that the reasonable construction to be given such a clause is that the union-security provision remains effective unless and until the proper tribunal determines that it is invalid. The very existence in the contract of the union-security provision therefore acts as a restraint upon employees desiring to refrain from union activities within the meaning of Section 7 of the Act." In the present case the purported savings or severability clauses expressly set forth the conditions under which the union-security provision of the contract is to be considered null and void. They are: (1) When adjudged unlawful by a court of competent jurisdiction; and (2) when the parties to the agree- ment jointly find that such provision is invalid as a matter of law, and either party thereupon reopens the contract to negotiate a new union-security pro- vision. So far as is shown, neither of these conditions ever came into operation, and to all intents and purposes the illegal union-security provision remained The clause involved in the above-named case reads as follows : This article [ referring to the illegal union-security clause] shall be binding on the Company only insofar as the law of the United States of America and the Common- wealth of Pennsylvania allows it to perform. v The clause reads : "If any provision of this agreement is in violation of ariy Federal or Connecticut State Law , such provision shall be inoperative to the extent only that such provision may be at variance therewith." PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 367 in full force and effect. No notice was ever given the employees of the Re- spondent Company, so far as the record reveals, that that provision of the contract was ineffective. I accordingly conclude and find that the illegal union-security provision remained in the contract as a part thereof, at all times herein material, and that at all times after July 1, 1948, when the first renewal of the contract took place, the said provision by virtue of its continued existence, necessarily restrained the employees of the Respondent Company in the exercise of their statutory right to refrain from affiliation with the Union. As is made plain by the decisions heretofore cited, and by those cited below, the mere existence of such an illegal union-security clause in a contract, even in the absence of its enforcement by the parties to the contract, tends to inhibit the employees affected, in a manner prohibited by the Act.18 The charges which set in motion the present proceeding were not filed until January 4, 1950. As a consequence of this, and of the 6-month rule of limitation embodied in Section 10 (b) of the Act, the amended complaint alleges that the Respondents have committed unfair labor practices by "enforcing since July 4, 1949, the collective bargaining agreements and amendments thereto" herein described. The unfair labor practices hereinafter found, therefore, are based only on the Respondents' conduct at all times since July 4, 1949. It is to be noted that the complaint alleges that the illegal union-security clause of the contract was actually enforced by the parties during the period in question. This the Respondents deny. The issues arising out of these conflicting con- tentions are dealt with in a succeeding section of this Report, and the findings and conclusions made at this point are based on the assumption that the Respondents did not, in fact, enforce the union-security provision of the contract after July 1, 1948 The General Counsel contends that by their above-described conduct the Re- spondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and the Respondent Union has engaged in'unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. No violation of Section 8 (a) (2) is alleged in the complaint or urged by the General Counsel. In accordance with the foregoing, and on the basis of the record as a whole and established Board decisions, I conclude and find that by keeping in existence the contract including illegal union-security provisions, the Respondent Company has at all times since July 4, 1949, com- mitted unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and that the Respondent Union has by the same conduct at all times since July 4, 1949, committed unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act.14 B. The alleged discriminatory discharges The amended complaint'alleges and the General Counsel contends that the Respondents have enforced the closed-shop provision of their contract at all times since July 4, 1949; that the Respondent Union on or before September 23,' 1949, demanded of the Respondent Company the discharge of all employees who were not members in good standing of the Respondent Union ; and that, pursuant to that, demand, the Respondent Company on or about September 23, 1949, dis- charged employees John Taylor, Adrian Boisfeuillet, and Maxie Sachuk because 23 Rockaway News Supply Company, Inc., 94 NLRB 1056 ; New York State Employers Association, Inc., and Red Star Empress Lines of Auburn, Inc., 93 NLRB 127; Julius Resnick, Inc, 86 NLRB 38, 40 ; C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163, 165. 14 New York State Employers Association, Inc., and Red Star Empress Lines of Auburn, Inc., supra.; Childs Company, 93 NLRB 281 ; Acme Mattress Company, Inc., 91 NLRB 1010. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their nonmembership in the Union, and has since refused to reinstate them to their former jobs. In support of his contentions the General Counsel adduced testimony primarily from the three employees who were allegedly discriminatorily discharged. Tay- lor's testimony may be summed up as follows : Taylor was first employed by the Respondent Company in August 1948, after answering an advertisement for elec- tricians inserted by the Company in a newspaper. Taylor, who was not a mem- ber of the Union, was not asked about this subject by anyone connected with the Company, when he was hired, but he himself raised the question with President Sidney Benerofe, who employed him, by inquiring of Benerofe "what the situa- tion would be there between [himself] and the Union." Benerofe, according to Taylor, told Taylor "not to worry about it . . . it would be perfectly all right." Taylor further testified that during December 1948 he made inquiries .of Irving Benerofe, secretary of the Respondent Company, as to whether his job with the Company was safe in view of his nonmembership in the Union, and was assured that the Company "would take care of" the situation. Finally, on January 6 or 7, 1949, Taylor, at the suggestion of Irving Benerofe, applied for membership in the Union, but his application was rejected. Taylor explained his anxiety about his job by testifying that it was a'matter of common knowledge that the Company maintained a "union shop" ; that he observed layoffs taking place on other construction jobs in the vicinity during the period in question; and that he was afraid that he might be laid off unexpectedly to make room for a union electrician at a time when it might prove difficult for him to find other employment. On or about January 13, 1949, Taylor received a telegram from the Company informing him that no more work was available and instructing him not to report to work the following workday. Later that week he spoke to some uniden- tified person in the office of the Company and was told that the layoff was tem- porary and that he would be recalled to work soon. During the period between his layoff and April 1949, Taylor spoke to Louis Ross, chief estimator and pur- chasing agent of the Company, and was assured he would be recalled by April 1. When he bad not been reinstated by that date, he telephoned Ross and was told by the latter, "I have some more union men who have to go on before you do." In a conversation with President Benerofe in February or March 1949, accord- ing to Taylor, Benerofe told him that so many members of the Union were out of work that the Company could not yet put Taylor back on the job. Taylor was finally recalled by the Company and returned to work in August 1949. On this occasion, Taylor told President Benerofe that he didn't "want to have any more trouble with the union,", and Benerofe answered, "You won't have any trouble. We have plenty of work, and nobody will bother you." About 4 or 5 weeks after Taylor resumed his employment with the Company, Ross and Taylor's foreman came to the site where Taylor and Sachuk were working, and Ross told them that it was necessary to lay them off again because "I have those union boys to take care of again." " When Taylor protested against the layoff, Ross answered, "What can I do? The union has insisted on it." Taylor testified that Ross also told him that the layoff would be of short duration and that he need not "bother to take [his] tools away." Taylor gave further testimony to the following effect : About noon of the day he was laid off as above described, he noticed several new electricians put to work on the project on which he was working. He identified two of these " The records of the Company indicate, and it is undisputed ,, that the final layoff of Taylor, Sachuk , and Boisfeuillet took place on Friday , September 16, 1949. PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 369 as "John Murray" and a "Mr. Hunt."" Following the layoff, Taylor telephoned the office of the Company several times and asked Ross about the possibility of returning to work. Ross told him that "he had some union men to go to work yet and not to be too impatient." It is undisputed that Taylor has not since been recalled to work. Sachuk testified, in sum, as follows : He was not a member of the Respondent Union at any of the times herein material. He was first employed by the Re- spondent Company in September or October of 1948, and spoke to Ross and Irving Benerofe on the occasion he was hired. He asked Ross and Benerofe what he should do about obtaining a "temporary card" from the Union, which he understood was necessary, and they told him " that they would take care of that. He worked for the Respondent Company until the middle of January 1949, when he was laid off. On that occasion he spoke to Ross, who told him that "it was a matter of a few days or so to get some of the union members placed on jobs." He was reemployed by the Company in August 1949, and from that time forward worked on the same project as Taylor and Bolsfeuillet, until they were laid off on September 16, 1949. On that day he was working together with Taylor, when the foreman"' and Ross came to the job site. Ross handed Taylor and Sachuk their pay and told them that the Company would have to lay them off for a while because "They [had] the union men to place back on the job again and it would be a temporary layoff for a few days, possibly a week, and we would be called back again." "A couple of weeks" later Sachuk inquired of a girl in the Company's office whether any jobs were available for electricians and was told that the Company was not doing any hiring. It is undisputed that he has not since been recalled to work by the Company. Boisfeuillet testified as follows : He was not a member of the Union at the times herein discussed. He was hired on behalf of the Respondent Company in August 1949, by Sidney Benerofe, who asked him whether he was a member of the Union. When he answered in the negative, Benerofe told him it would make no difference because "he had quite a bit of work." Boisfeuillet was assigned to work on the same project as Taylor and Sachuk, and was working there on September 16, 1949, when they were all laid off. He testified that Ross brought him his pay envelope and told him in the presence of the foreman that he was "sorry but he had to let us go. There were quite a few union men unemployed, and they would have to go back to work before we could go back on the job." Boisfeuillet testified that he applied several times thereafter for reinstatement, but has never been recalled by the Company. The Respondents presented testimony to the general effect that they never enforced the union-security provisions of their contract after July 1, 1948; that the Union never demanded the discharge of Taylor, Boisfeuillet, and Sachuk, or of any other employees after July 1, 1948, on the ground of their nonmember- 16 Wilfred B. Hunt testified that he was a member of the Respondent Union ; that he was laid off his job (he had been working for an employer other than the Respondent Company ) in September 1949; that upon being laid of he called the office of the Union for employment ; that within a day or two he was sent by the, Union to the Respondent Company ; that he reported to the Respondent Company on September 14, 1949, and was assigned to work on the Winbrook Apartment project, where Taylor, Sachuk , and Bois- feuillet were then working; that he continued to work on that project until the following Monday ; and that he was then transferred by the Respondent Company to another of its projects where he worked out the remainder of the week , when he was laid off. A "John Morey" was available at the hearing , but was not called as a witness. 11 Sachuk testified that Ross and Benerofe were both present on the above -described occasion but that Ross did most of the talking. 'B The foreman was referred to by some of the witnesses as "Karl Brenner." He is actually named William F. Kalkbrenner . There is no dispute as to his identity. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship in the Union ; and that Taylor, Boisfeuillet, and Sachuk were laid off by the Company because of lack of work, and without regard to their lack of union membership. Specifically with respect to the discharge of Taylor, Boisfeuillet, and Sachuk, the Respondent Company adduced the following evidence : President Sidney Benerofe testified that he, as chief executive of the Company, generally attempts to follow a policy of effectuating layoffs in order of seniority. He made it clear, however, that such a policy is not practiced rigidly, and that when, in his judg- ment, other factors such as comparative ability or the demands of a particular job outweigh that of seniority, he departs from a strict seniority standard in selecting employees for layoff. On the basis of Benerofe's uncontradicted testi- mony, which I credit, I conclude and find that the Respondent Company does not adhere consistently to any single criterion in determining the order in which employees are to be laid off, but that in each case layoffs are effectuated accord- ing to the instructions of President Benerofe, who, in exercising his judgment, is influenced by the respective seniority standings of the employees affected, as well as by other factors, such as Benerofe's opinion of their qualifications, the demands of particular jobs then in the course of completion, and the like. It will be remembered that Taylor and Sachuk testified that they had been laid off in the middle of January 1949, that they were recalled to work in August 1949, and that their final layoff .took place in September 1949, when Boisfeuillet was likewise laid off. The layoff of Taylor and Sachuk in January 1949 does not fall within the period covered by the amended complaint, and the General Counsel seeks to have unfair labor practice findings made only with respect to the layoff, or discharge, of Taylor, Sachuk, and Boisfeuillet which took place on September 16, 1949. The prior layoff of Taylor and Sachuk was presumably litigated at the hearing for the purpose of shedding light on the motives of the Respondent Company in effectuating the final layoff of the three employees. Nathan Koenig, office manager of the Respondent Company, testified on the basis of company records that Taylor and Sachuk were laid off by the Com- pany on January 16, 1949, and that on the same day 6 other electricians, whom he named, were also laid off. William Patterson, business manager of the Respondent Union, testified that of the 8 men named by Koenig as having been laid off on January 16, 5 (including Taylor and Sachuk) were not members of the Union, and 3 were members. Also according to the testimony of Koenig and Patterson, 14 electricians (including Taylor, Sachuk, and Boisfeuillet) were laid off by the Company on September 16, 1949, of whom 6 (including Taylor, Sachuk, and Boisfeuillet) were not members of the Union, and 8 were members thereof. I credit the undenied testimony of Koenig and Patterson which has been sum- marized above. President Sidney Benerofe of the Company testified that the layoffs of January and September were both effectuated because the particular jobs on which the men were then employed had been completed, or had progressed to a point where it was impossible to continue further electrical work, that the layoffs were, consequently, brought about by lack of work, and that the employees laid off on both occasions were selected without regard to their membership or nonmem- bership in the Union. There is no direct evidence in the record that the Union ever requested or required the Company to lay off any employee to make a job available for. a union member, or that after July 1, 1948, the Union ever attempted in any way to enforce the union-security provisions of the contract. What the General Counsel necessarily relies upon to sustain - his contentions that Taylor, Sachuk, and PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 371 Boisfeuillet were discriminatorily laid off or discharged at the demand of the Union is the circumstantial evidence which may be summed up as follows : 1. The continued existence of the closed-shop provision in the contract, which arouses some suspicion that the parties may have intended to continue to en- force it while claiming not to do so. 2. The remarks allegedly made to Taylor, Sachuk, and Boisfeuillet at various times by Ross and the two Benerofes, 0 indicating that membership in the Union was a factor in the continuance of an employee's tenure with the Company, and the explanations allegedly given these employees for their layoffs, namely that it was necessary for them to make way for unemployed members of the Union, who had to be given priority in employment by the Company. Without setting forth their testimony in detail, it suffices to note here that Ross, Irving Benerofe, and Sidney Benerofe flatly denied making some of the aforesaid statements attributed to them by Taylor, Sachuk, and Boisfeuillet, and with respect to the remainder, testified that they did not recall any such con- versations. For reasons detailed below, I am convinced that the record fails to establish that the layoff or discharge of Taylor, Sachuk, and Boisfeuillet in September 1949, and the preceding layoff of Taylor and Sachuk in January 1949, were discriminatory in nature. I am therefore constrained to credit the denials of Ross and the two Benerofes that they had made any remarks to these three en .ployees implying that their nonmembership in the Union was the basis of the layoffs 20 As have seen, the Respondents proved that on the occasion when Taylor and b- -,link were laid off on January 16, 1949, six other employees were also laid off, of whom one was not a member of the Union, the remaining five being union members. In the absence of any credible evidence that Taylor, Sachuk, or the other nonunion employees were laid off at this time because of their lack of union membership, or of any evidence that they were laid off at the demand of the Union, and in view of the fact that five members of the Union were laid off on the same occasion, I am impelled to conclude and find that this layoff was effectuated by the Company in the ordinary course of itC business operations, and as the result of the usual fluctuations in its need for employees, and further, that Taylor and Sachuk, as well as the other employees affected, were selected for layoff without regard to their affiliation or nonaffiliation with the Union.21 19 These remarks have been detailed in the summary of the testimony of Taylor, Sachuk, and Boisfeuillet hereinbefore set forth. 20 As is sometimes the case, the demeanor of the respective witnesses who gave such conflicting testimony was of little assistance in resolving the conflicts. They all impressed me, so far as their appearance on the witness stand was concerned, as honest men. I have therefore resolved the conflicts in favor of that version of the events which seems to me to be supported, in the main, by the record as a whole, apart from the specific testimony here being considered. In addition, I am constrained to attach strong credence to the testimony of Sidney Benerofe because with respect, to one specific phase of Taylor's testimony, which Benerofe denied, Benerofe's denial seems to be corroborated by an independent circumstance. Thus, in denying Taylor's testimony that he had told Taylor, in February or March of 1949, that he could not put Taylor back to work because there were so many members of the Union out of jobs Sidney Benerofe testified credibly and without contradiction that during the period in question he was absent from his place of business on an extended annual vacation in Florida. 21 The Company adduced testimony, which I credit, that it has to make frequent layoffs in the normal course of its business, as particular construction jobs are completed or have to be brought to a halt for one reason or another, and, conversely, that it has to hire men periodically as new jobs are begun , or old ones resumed. In brief, the nature of the business is such that sharp and frequent fluctuations in employment take place: Moreover, Taylor admitted that when the January layoff was announced, he was not surprised or "too concerned" about it, because he realized the weather was bad at the time, and he knew from experience that under such circumstances a layoff was to be expected. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the layoff of Taylor , Sachuk , and Boisfeuillet on September 16, 1949, essentially the same situation is prbsented. On the same day that these 3 employees were laid off, the Company also laid off 11 others , of whom 3 were not members of the Union and 8 were. These facts strongly suggest that the laid-off employees were not selected on the basis of membership or nonmember- ship in the Union . In addition , the evidence introduced on behalf of the Re- spondent Company as to the reasons for this layoff, and the circumstances sur- rounding it, preponderates in favor of its contention that the layoff was ef- fectuated only because of bona fide business reasons. Thus, President Sidney Benerofe testified on the basis of company records that he was informed about a week before , September 16, 1949, that the general construction work on the project on which Taylor, Boisfeuillet, and Sachuk were employed had not kept pace with the electrical installation work which the Company was doing, and that, consequently , the electrical work would have to be brought to a halt. He further testified that he then planned to complete whatever electrical work could be done at that stage of the construction , and to lay off the men employed by the Company on that project at the end of the payroll period, September 16. Benerofe issued orders to lay off the employees involved, and the layoff was effectuated according to his instructions on the date in question. It appears from the record that one Hunt was hired by the Company (to- gether with several other employees ) and put to work on the same project on September 14, 2 days before the layoff , and that Hunt, at least , was not laid off on the 16th, but was kept in the employ of the Company until the end of the following pay period, September 23. The General Counsel apparently contends that Hunt's employment just before the contemplated layoff, and his retention in the Company 's employ thereafter , indicates that the Company was displacing nonunion electricians to make way for unemployed members of the Union (Hunt was admittedly hired through the Union and was a member thereof). This implication, however, is rebutted not only by the fact that union as well as nonunion employees were laid off on September 16, but also by the explanation advanced by the Company for Hunt's employment , which impresses me as being reasonable and credible . President Benerofe testified that it was often neces- sary to make special efforts to finish a job on the date planned for such com- pletion, and that not uncommonly the Company would hire extra men near the end of the project period , or order the crew working on such a project to work overtime, in order to insure completing the job on the date plannbd . It is thus nothing extraordinary to have the company records reflect the seemingly strange phenomenon of men being put to work for a few days, or employees being paid premium pay for overtime,, immediately preceding a layoff. Benerofe testified further that Hunt and the other employees hired at the same time were put to work on the project In question because some particular phase of the work, which, as Benerofe recalled , was laying some underground cable, appeared to be lagging behind. Hunt's work was not finished by the end of the payroll period, so he was kept on the )ob until it was finished, a matter of some 4 hours. At that point, the Company needed a man on another project , Benerofe further testified, so, instead of laying off Hunt and hiring another employee , the Com- pany transferred Hunt to the other project . Hunt was laid off, according to the Company's records, at the end of the next payroll period , September 23, 1949. As will be recalled, Taylor, Boisfeuillet, and Sacbuk described their layoff on September 16 as being announced to them by Ross, the Company 's estimator, who, according to these employees , handed them their pay in the presence of their foreman, and told them in substance that they were being laid off because the Company was required to put some unemployed members of the Union to PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 373 work. Ross and the foreman, William F. Kalkbrenner, flatly denied the testi- mony of these three employees. Ross testified that his duties do not include the hiring or firing of employees, and that he visits the sites of company projects only-to deliver payrolls to the respective foremen, to transport employees to and from their jobs, and to carry on his duties as an estimator. Ross testified fur- ther that on September 16, he delivered the payrolls to Kalkbrenner for the men on that particular project, together with enclosed instructions to effectuate the layoff. According to Ross, he had no conversation with Taylor, Boisfeuillet, or Sachuk, but merely waited nearby because he was supposed to transport some of the men back to the company office. Kalkbrenner paid off the men, Ross testified, but he (Ross) did not overhear the conversation that ensued. The testimony of Foreman Kalkbrenner corroborates that of Ross. Kalkbrenner's version of the layoff is as follows : Ross came to the job site, handed him the pay envelopes, and called his attention' to the fact that there were appended instructions for the layoff of some of his men. Kalkbrenner then gave Taylor, Boisfeuillet, and Sachuk their pay and told them that they were being laid off. Ross took no part in the conversations. Kalkbrenner denied that either he or Ross told the men that they were being laid off because there were unemployed members of the Union who had to be put to work. I credit the testimony of Ross and Kalk- brenner, and reject the version of the layoff contained in the testimony of Taylor, Boisfeuillet, and Sachuk. On the basis of the foregoing and the record as a whole I conclude and find that Taylor, Boisfeuillet, and Sachuk were laid off by the Respondent Company on September 16, 1949, and were thereafter not recalled to work '12 for nondis- criminatory reasons, and that they were selected for layoff on the above date without regard to their membership or nonmembership in the Union. C. The alleged enforcement by the Respondents of the i llegal union-security provisions in their contract The fact clearly emerges from the preceding discussion that the General Counsel's contention that the Respondents have at all times since July 4, 1949, enforced the illegal union-security provisions of their contract, depends for support on 'his having established the discriminatory nature of the layoffs of Taylor, Boisfeuillet, and Sachuk. This, as has been found above, the General Counsel has failed to do. There is, in my judgment, no evidence in the record other than the discredited testimony of the three above-named employees, which tends to prove that the parties have enforced the union-security clause of the contract after July of 1948. The only evidence bearing directly on this issue is the testimony of witnesses appearing on behalf of the Respondents. This testimony is summarized below. William Patterson, business manager of the Respondent Union, testified that he was advised by counsel that the closed-shop provisions of the contract between the Union and the Association were illegal under the amended Act ; that it was for that reason that the purported savings or severability clauses were inserted in the contract ; that prior to July 1, 1948, he, on behalf of the Union, notified the Association that the closed-shop provisions would not be enforced after that date ; and that the Union neveri did attempt to enforce the said provisions after that time. Patterson further testified that after July 1, 1948, the employer- parties to the contract continued, as a matter of convenience in procuring quali- fied workers, to call upon the Union to supply them with electricians when they 11 There is no showing in the record that the failure of the Company to recall the three above-named employees to work after their final layoff was discriminatory. 986209-52-vol 97--25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed such employees, but that the employers were not required by the Union to do so, nor were ever asked by the Union to discharge any nonunion worker in their employ or to restrict their hiring to members of the Union. A number of electrical contractors who are members of the Association and parties to the contract with the Union, including some past and present officers of the Association," testified to the following effect : Sometime shortly before July 1, 1948, the Union informed the Association that the Union had been advised by counsel that the closed-shop provision of the contract was of doubtful legality and could no longer be enforced, and that it was the intention of the Union not to enforce it from that point forward. The said provision was-never enforced by the parties after that time. The number of employees required in the electrical contracting business fluctuates sharply from week to week, which makes it necessary that the employers be able to obtain qualified workmen on short notice. The Union has available a pool of experienced electricians which the contractors can call upon to meet this need. Therefore, even though the members of the Association were free to hire anyone they wished after July 1, 1948, they preferred, as a matter of convenience to themselves, to avail them- selves of the "employment agency" services of the Union when they required qualified electricians in a hurry. As a consequence, the members of the Associa- tion, including the Respondent Company, continued as a general practice, after July 1, 1948, to call upon the Union to send them electricians when they required the services of such employees. Similarly, as a general practice, though with some exceptions, they resorted to other means of recruiting electricians only in the event that the Union was unable to furnish an adequate number of work- men when called upon to do so. The witnesses in question also testified that they were never asked by the Union, after July 1, 1948, to replace nonunion electricians in their employ with members of the Union, on occasions when work became slack and members of the Union were unemployed, and that they did not of their own volition lay off or discharge nonunion employees to make way for union members. I credit the uncontradicted testimony which has been summarized directly above, and find that after July 1, 1948, the Respondents did not enforce the illegal union-security provision of their contract. The issue remaining to be resolved is whether the hiring practices described in the aforesaid testimony, which are admittedly followed by the Respondent Company, constitute discrimination within the meaning of the amended Act. In resolving that issue, I have kept in mind that the Respondents herein are parties to a contract containing, at least physically, an illegal union-security clause, and that the hiring practices here under discussion should be scrutinized to determine whether in fact they amount to a disguised continuance of the formerly open enforcement of the illegal union-security clause. What those hiring practices constitute at most, it seems to me, is a willing use, on the part of the employers, of the Union's facilities for referring experi- enced and qualified electricians to the employers on short notice. It is true, of course, that such a practice results in the employment primarily of union members by those employers who avail themselves of the aforesaid facilities. It would be unrealistic to expect that the Union would lend its services for the employment of nonunion men, and so far as the record shows, it does not do so. But the fact remains that the only sizable pool of qualified electricians in the vicinity is that comprised of members of the Union. This is the natural result of the preceding history, legal until July 1, 1948, of a closed-shop arrangement 23 David M Cockburn, Jack Ratner, Walter W Whiffen, Stephan Stephanson, Jr., W. R. MacCumber, George H McKee, and Sidney Benerofp. PORT CHESTER ELECTRICAL CONSTRUCTION CORPORATION 375 in the greater part of the electrical contracting industry in that vicinity. The result is that when an electrical contractor there situated wishes to hire a sub- stantial number of electricians within a short period of time, he normally turns ,to the Union for his own convenience. To do otherwise would, as witnesses at the hearing testified, involve advertising, making inquiries for employees at distant points, conducting interviews with unfamiliar applicants to determine their qualifications, and in some cases hiring employees who would turn out to be unsatisfactory. In contrast to this, the Union offers the services of employees with whose qualifications the employers have become acquainted through past experience. In the absence of the enforcement of any requirement that the employers con- fine their hiring to members of the Union, and of any practice whereby the employers do in fact restrict their employment of electricians to those holding membership in the Union, or necessarily give preference in employment to union members, I fail to see anything illegal in the arrangement by which, purely voluntarily, and for their own convenience, the employers use the Union, so to speak, as an employment agency. The record as a whole establishes, and I find, that the employers belonging to the Association, including the Respondent Company, do hire electricians who are not members of the Union ; that the tenure of employment of such employees is not affected by their nonmembership in the Union ; and that the hiring prac- tices of the Respondent Company pursuant to which it usually calls first upon the Union to supply it with electricians when they are needed, are not discriminatory within the meaning of the Act.24 I accordingly conclude and find that the Respondents herein have not, since July 1, 1948, enforced the union-security provisions of the contract in effect between them, and shall recommend that the complaint be dismissed insofar as it alleges that they have committed unfair labor practices by so doing. IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Such of the activities of the Respondents set forth in Section III, above, which have been found to constitute unfair labor practices, occurring in connection with the operations of the Respondent Company described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY I have found that the Respondent Company violated Section 8 (a) (1) and (3), and the Respondent Union, Section 8 (b) (1) (A) and (2) of the Act, by keeping in existence the illegal union-security provisions of their contract at all times after July 4, 1949. No violation of Section 8 (a) (2) of the Act was either alleged or found 25 I shall recommend that the Respondents cease in- cluding in their contract those provisions of their collective bargaining contract which, in violation of the Act, require membership in the Union as a condition of employment, or which require the Respondent Company to give preference in employment to members of the Union. I shall further recommend that the Re- spondents refrain from committing any like or related unfair labor practices, and that they take certain affirmative action designed to effectuate the purposes and policies of the Act. 24 Cf. Missouri Boiler and Sheet Iron Works, 93 NLRB 319 ; American Pipe and Steel Corporation, 93 NLRB 54 15 Cf Chslds Company, 93 NLRB 281. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondents did not commit any of the unfair labor practices alleged in the complaint except those resulting from the mere inclu- sion of the illegal union-security provisions in their contract at all times after July 4, 1949, I shall recommend that the complaint be dismissed insofar as it alleges the commission of any other unfair labor practices by the Respondents. 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. The business operations of the Respondent, Port Chester Electrical Con- struction Corporation, constitute commerce, and activities which affect commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. Local Union 501, International Brotherhood of Electrical Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By keeping in existence an illegal union-security clause in its contract with the Respondent Union, the Respondent Company has at all times since July 4, 1949, discriminated in regard to the terms and conditions of employment of its employees, to encourage membership in the Respondent Union, and has inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By keeping in existence an illegal union-security clause in its contract with the Respondent Company, the Respondent Union has at all times since July 4, 1949, attempted to cause the Respondent Company to discriminate against its employees in violation of Section 8 (a) (3) of the Act, and has restrained and coerced such employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondents did not commit any of the other unfair labor practices alleged in the complaint. [Recommended Order omitted from publication in this volume.] WALTER AND SHIRLEY COHEN -D/B/A TOWER CLEANERS and CLEANING AND LAUNDRY WORKERS UNION, LOCAL 457, AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER. Case NO. 5-RC-908. December 10, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John M. Dyer, hearing officer. The hearing -officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. 97 NLRB No. 10.