Paul W. Speer

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nelson & Hanson Boat Works Pacific Boat Sales & Service Portage Bay Co. Skansie Shipbuilding Corp. Tacoma Marine Basin Tripple & Everett Marine Ways Washington Boat Center Youngquiest Boat Works (b) they are no longer engaged in marine repair or construction:, Glein Boat Land Pleasurecraft Boat Builders Puget Sound Marina, Inc. Black Ball Ferry Lines (operated by the State of Washington) (c) they do not employ carpenters: Violet Beck and William Beck, d/b/a Dahl-Beck Electric Company (d) they are primarily an uptown machine shop : Carmac Shipyards, Inc. PAUL W. SPEER, PAUL W. SPEER, INC. and PAUL ESPARZA INTERNATIONAL HOD CARRIERS' AND LOii_IION L.1aoRERs' UNIO_\' OF AMERICA, LOCAL 300, AFL and Los ANGELES BUILDING AND CON- STRUCTION TRADES COUNCIL and PAUL ESPARZA. Cases Nos. 21-CA- 844 and 21-CB-276. February 21, 1952 Decision and Order On June 13, 1951, Trial Examiner James R. Hemingway 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 therefrom and take such affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner itt the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the cases and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications : 98 NLRB No. 40. PAUL W. SPEER, INC. 213 1. The Trial Examiner found that by executing the agreement of September 26, 1949,1 the Respondent Speer violated Section 8 (a) (1) and (3) and the Respondent Council violated Section 8 (b) (1) (A) and (2) of the Act. While we agree generally with the Trial Examiner that the execution of a collective-bargaining agreement containing an illegal union-security clause is a violation of the Act, we are in' this instance precluded from making such finding by reason of the 6-month period of limitations as provided in Section 10 (b) of the Act.-' The record-shows that the agreement herein was executed more than 6 months before the filing of the charges on July 10, 1950, and the service of the charges on July 12, 1950. Accordingly, the prohibition of Section 10 (b) of the Act applies so far as the execution of the contract is concerned. However, the agreement was to be effective for a period of at least a year from the date of its execution, a terns encompassing, and con- tinuing after, the Section 10 (b) statutory period. No evidence was presented that the agreement had been either revoked or otherwise terminated. In the circumstances, it is clear that the agreement continued in effect, and served no less as a restraint on employees' i ights to refrain from joining an organization after January 12, 1950, than it did at the time of its execution.3 No more conclusive evidence of this can be cited than the discrimination against Esparza, which discrimination we find to be violative of the Act. We are therefore of the opinion that the continued effectiveness of the agreement with its unlawful union-security clause was a violation of the Act from and after January 12, 1950, and that thereby the Respondent Speer violated Section 8 (a) (1) and (3) of the Act, and the Respondent Council violated Section 8 (b) (1) (A) and (2) of the Act.4 Like the Trial Examiner, we also find that the lespondent Union violated Section 8 (b) (1) (A) and (2) of the Act "by giving effect" to the agreement. 2. We agree with the Trial Examiner's finding that Respondent Speer violated Section 8 (a) (3) and (1) of the Act by his discrimi- natory refusal to hire Esparza. 'The agreement provided in substance that the Employer and his subcontractors would employ in all work performed under the jurisdiction of the Council and its affiliated unions only members in good standing with the union that has jurisdiction over the work in accordance with the wage scales, classifications, and working rules of such unions The agreement also provided that the Employer should comply with the requirements of the Council and affiliated unions for clea'eing workmen to the job before they are put to work thereon, and in the event the Council was unable to furnish competent mechanics in all branches of the industry, then the Employer might employ whomever he chose, provided the workmen first expressed their willingness to abide by the rules and regulations of the affiliated union by filling out an application and paying the necessary fees Y See Cathey Lumber Company, 87 NLRB 215 ' Cf Monolith Portland Cement Co , 94 NLRB 1358 , Port Chester Electrical Construc- tion Corporation, 97,,NLRB 354. A Childs Company, 93 NLRB 281 998666-1 ol. 98-33--13 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. In addition the Trial Examiner found, and we agree, that the Respondent Union's practice of requiring clearances prevented Esparza from being employed by the Respondent Speer, thereby restraining and coercing Esparza in violation of Section 8 (b) (1) (A) of the Act. The Trial Examiner then concluded as a matter of law that the Respondent Union violated Section 8 (b) (2) "by causing Speer to discriminate in regard to hire and tenure of employment" by giving effect to the illegal agreement. We construe this conclusion of law as it finding, which we adopt, that the Respondent Union, by its practice of requiring Esparza's clearance pursuant to the agreement, caused Speer to discriminate against Esparza, thereby violating Section 8 (b) (2). The General Counsel excepted to the Trial Examiner's failure to recommend that the Respondent Council be held liable for the dig- crimination it "caused" Speer to visit on Esparza. Implicit in this exception is an exception to the Trial Examiner's failure to make the specific Section 8 (b) (2) and (1) (A) findings necessary to support his conclusion of law that the Respondent Council "caused" Speer to discriminate against Esparza. We find merit in this exception of the General Counsel. Although the evidence in the record does not show that the Respondent Council affirmatively participated in the illegal practices involving Esparza, it does show that it executed the agreement providing for the establishment and enforcement by the Respondent Union of such practices. Moreover, the record shows that one of the principal func- tions of the Respondent Council was to coordinate the activities of its constituent locals and to establish uniform terms and conditions of employment. Therefore, when the Council pursuing its normal func- tions executed the illegal agreement, it necessarily contemplated that its affiliates would give effect to the illegal union-security provision, precisely as the Respondent Union did with respect to Esparza. In these circumstances, we regard the relationship between the Council and each affiliate as that of cosponsors of the illegal agreement and practices. Such cosponsorship, under well-established legal and equi- table principles, carries with it the responsibility of joint participants nn a. common enterprise for one another's acts performed in furtherance of the enterprise.5 Accordingly, although the evidence in the record does not show that the Respondent Council was affirmatively associated with the events- leading to Respondent Speer's unlawful discriminatory refusal to hire Esparza, we find that because of its participation-in a common enter- 1 Oste-ink Construction Company, 82 NLRB 228. As we find that the relationship between the Respondent Council and the Respondent Union is that of joint participants in a common enterprise, we do not adopt the Trial Examiner's finding that the Respondent Council executed the agreement as agent for the Respondent Union. PAUL W. SPBER, INC. 215 prise with the Respondent Union, the latter's conduct is to be imputed to the Respondent Council, and the latter's liability becomes the liabil- ity of the Respondent Council.° Moreover, and apart from other con- siderations, we find that the Respondent Council, by continuing the discriminatory conditions of employment from and after January 12, 1950, leading ultimately, as the Trial Examiner found, to the discrim- inatory refusal to employ Esparza, on well-established principles of law must be held responsible for the reasonably anticipated results of its wrongful conduct.' We therefore find, on the basis of the forego- ing facts, that the Respondent Council "caused" Speer to discriminate against Esparza in violation of Section 8 (a) (1) and (3) of the Act and that it thereby violated Section 8 (b) (1) (A) and (2) of the Act. 4. We do not find, as did the Trial Examiner, that Esparza would have been employed until about July 18, 1950. The superintendent of the job credibly testified that on July 3, 1950, the day that Esparza applied for work, laborers, such as Esparza, were being hired only to help with stripping forms from newly poured concrete. This was called "emergency work" and lasted no longer than 4 days. When the stripping was finished, the services of the temporary, or "emergency," laborers were terminated and the job was continued by the regular working crew. The continuation of Esparza's services for more than 4 working days rests on a series of hypotheticals : That a vacancy would have occurred at that time on the normal working force at the job, that the foreman would have decided to fill this vacancy,8 and that the man chosen to fill this vacancy would have been Paul Esparza. While such a chain of events was possible, it was not sufficiently cer- tain to support a finding that Esparza's employment would have con- tinued beyond July 10, 1950. Accordingly, we find that Esparza's employment would have terminated on July 10, 1950, and not on July 18,1950, as found by the Trial Examiner, or on an indefinite future date as urged by the General Counsel. The Remedy Because it has been found that the Respondents Speer, the Union, and the Council have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. As the practices of Speer and the Union as well as the Council pre- vented Esparza from being employed on the job, we shall order that they jointly and severally make hirri whole for any loss he may have 6 Cste,ink Construction Company, supra. 7Chulds Company, supra ; Consolidated Western Steel Corporation, 94 NLRB 1590 S In the week following the 3d of July, two laborers were hired and then eight were discharged , indicating that there was not enough work for the normal force. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered as a result thereof by paying to said Esparza an amount equal to that which he would have earned from July 3, 1950, to July 10, 1950, the date when in the normal course of events he would have been laid off for lack of work, less his net earnings fl during said period. Order Upon the basis of the entire record in the case, and pursuant to Section 10 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. The Respondent Paul W. Speer, his agents, successors (includ- ing Paul W. Speer, Inc.), and assigns shall : a. Cease and desist from : (1) Maintaining, renewing, or enforcing provisions of any agree- ment with the Respondent Union, International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, or with the Respondent Los Angeles Building and Construction Trades Council, or with'any other labor organization which requires his employees or prospective employees to join, maintain membership in, or procure clearance by, such labor organization as a condition of employment, unless such agreement is in conformity with Section 8 (a) (3) of the Act. (2) Encouraging membership in the Respondent Union, or in any other labor organization of its employees by discriminatorily dis- charging or refusing to employ any employee or by discriminating in any other manner in respect to the hire and tenure of employment of any employee or in respect to any term or condition of employment. (3) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in 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 em- ployment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Make whole the said Paul Esparza for any loss of pay he may have suffered by reason of the discrimination against him in the man- ner set forth in the section entitled "The Remedy," above. 9 Crossett Lumber Company, 8 NLRB 440. In computing back pay, see F. W. Woolworth Company, 90 NLRB 289, to the extent applicable here. PAUL W. SPEER, INC. 217 (2) Post at each construction site in conspicuous places including all places where notices to employees or prospective employees are customarily posted, copies of the notice attached hereto and marked "Appendix A." 10 Copies of said notice, to be furnished by the Re- gional Director for the Twenty-first Region, shall, after having been duly signed by Speer and the Company's representative, be posted by them immediately upon receipt thereof, and be maintained by them for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by them to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps each has taken to comply herewith. II. The Respondent International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, its officers, representa- tives, agents, successors, and assigns shall : a. Cease and desist from : (1) Maintaining, renewing, or enforcing provisions of any agree- ment between itself or the Los Angeles Building and Construction Trades Council on the one hand and Respondent Paul W. Speer or his successor, Paul W. Speer, Inc., on the other hand, requiring em- ployees to join, maintain membership in, or procure clearance by, the Respondent Union as a condition of employment, unless such agree- ment is in conformity with Section 8 (a) (3) of the Act. (2) In any other manner causing or attempting to cause the Re- spondent Speer or his successor, Paul W. Speer, Inc., or any other employer, his or its officers, agents, successors, or assigns, to discrimi- nate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. (3) In any other manner restraining or coercing employees-in the exercise of the rights guaranteed in Section 7 of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Make whole said Paul Esparza for any loss of pay he may have suffered by reason of causing the discrimination against him in the manner set forth in the section entitled "The Remedy," above. (2) Post at its offices in Los Angeles, California, copies of the notice attached hereto and marked "Appendix B." 11 Copies of said notice, to be furnished by the Regional Director for the Twenty- 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a decree of the United States Court of Appeals enforcing an Order." 11 See footnote 10, above. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first Region, shall, after being duly signed by the Respondent Union's representative, be posted by the Union, upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respond- ent Union to insure that said notices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Twenty-first Region signed copies of the notice attached hereto and marked "Appendix B," for posting, Speer and his successor, Paul W. Speer, Inc., willing, in places adjacent to those where Respondent Speer and his successor, Paul W. Speer, Inc., post copies of Appendix A and for the same period of time. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after having been duly signed by the Union's representative, be forthwith returned to said Regional Director for such posting. (4) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. III. The Respondent Los Angeles Building and Construction Trades Council, its officers, representatives, agents, successors, and assigns, shall : a. Cease and desist from : (1) Maintaining, renewing, or enforcing the provisions of any agree- ment with the Respondent Speer, his successor, Paul W. Speer, Inc., or any other employer, requiring employees to join, maintain their membership in, or procure clearance by, the labor organizations or any of them on behalf of whom said Council acts, unless such agree- ment is in conformity with Section 8 (a) (3) of the Act. (2) in any other manner causing or attempting to cause the Re- spondent Speer or his successor, Paul W. Speer, Inc., or any other employer, his or its officers, agents, successors, or assigns, to discrimi- nate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. (3) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. b. Take the following affirmative action which the Board finds will effecutate the policies of the Act : (1) Make whole said Paul Esparza for any loss of pay he may have suffered by reason of causing the discrimination against him in the manner set forth in the section entitled "The Remedy," above. (2) Mail to the Regional Director for the Twenty-first Region signed copies of the notice attached hereto and marked "Appendix PAUL W. SPEER, INC. 219 C," 1 for posting in places adjacent to those posted for the Respond- ent Union. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after having been duly signed by the representatives of the. Respondent:Council, be- forth- with returned to said Regional Director for such posting. (3) Mail to each of the labor organizations represented by Council a copy of Appendix C hereto attached with the request that said labor organizations post such notice immediately upon receipt thereof and maintain it for sixty (60) consecutive days thereafter, in a con- spicuous place where notices to members are customarily posted; and further request that such labor organizations take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps it has taken to comply herewith. MEMBER HOUSTON 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 : WE WILL NOT maintain, renew, or enforce any agreement with Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL or INTERNATIONAL HOD CARRIERS' AND COMMON LABORERS' UNION OF AMERICA, LOCAL 300, AFL, or any other labor organization, which requires our employees or prospective employees to join or maintain their membership in, or procure clearance by, such labor organizations as a condition of employment, unless such agreement is in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist INTERNATIONAL HOD CARRIERS' AND COMMON LABORERS' UNION OF AMERICA, LOCAL 300, AFL, or any other labor organization, to bargain collectively through repre- 12 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a decree of the United States Court of Appeals enforcing an Order." 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives of their own choosing, and to engage in concerted ac- tivities 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 agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. The undersigned, PAUL W. SPEER, will make whole PAUL ESPARZA for any loss of pay suffered as a result of the discrimina- tion against him. All our employees are free to become, to remain, or to refrain from becoming or remaining members of, INTERNATIONAL HOD CARRIERS' AND COMMON LABORERS' UNION OF AMERICA, LOCAL 300, AFL, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. Dated -------------------- PAUL W. SPEER, PAUL W. SPEER, INC., 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. Appendix B 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 members that : WE WILL NOT maintain, renew, or enforce any agreement with PAUL W. SPEER or his successor, PAUL W. SPEER, INC., or any other employer, which requires employees or prospective em- ployees to join, maintain membership in, or procure clearance by, this labor organization as a condition of employment, unless such agreement is in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended. WE WILL NOT cause or attempt to cause PAUL W. SPEER, his successor, PAUL W. SPEER, INC., or any other employer, his or its officers, agents, successors, or assigns, to discriminate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees or prospective em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. PAUL W. SPEER, INC. 221 WE WILL make whole PAUL EsPARZA for any loss of pay lie may have suffered as a result of the discrimination against him. INTERNATIONAL HOD CARRIERS' AND CoDI\ION LABORERS" UNION OF AMERICA, LOCAL 300, AFL, By ---------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix C 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, we hereby-notify our members that : WE WILL NOT maintain, renew, or enforce any agreement with PAUL W. SPEER, his successor, PAUL W. SPEER, INC., or any other employer, which requires employees to join, maintain mem- bership in, or procure clearance by, any labor organization as a condition of employment, unless such agreement is in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended. AVE WILL NOT cause or attempt to cause PAUL W. SPEER, his successor, PAUL W. SPEER, INC., or any other employer, his or its officers, agents, successors, or assigns, to discriminate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. AVE WILL NOT restrain or coerce employees or prospective em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole PAUL ESPARZA for any loss of pay he may have suffered as a result of the discrimination against him. Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, By ----------------------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a second amended charge filed by Paul W. Esparza, an individual, on October 20, 1950, against Paul W. Speer, Inc., hereinafter called the Company, and upon another second amended charge filed by said Esparza on the same day against International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, and Los Angeles Building and Construction Trades Council, herein called Union and Council respectively, the General Counsel for the Na- tional Labor Relations Board,' by the Regional Director for the Twenty-first Region (Los, Angeles, California), issued his complaint, 'dated December 5, 1950, alleging that the corporate respondent, Paul W. Speer, Inc., hereinafter called the Company, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act, and alleging that the Union and Council had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, and that all such unfair labor practices were unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. By order of the Regional Director dated December 5, 1950, the cases were consolidated for the purpose of hearing. Copies of said order, of the complaint, of notice of hearing, and of the respective charges were served upon the parties. With respect to the unfair labor practices the complaint alleges in substance that the Company, the Council, and the Union (through the Council) had entered into and were giving effect to an illegal and invalid collective- bargaining agree- ment which required that all employees of the Company and of subcontractors of the Company be and remain members of unions affiliated with the Council and ,vbich provided that the Company would "comply with the requirements of the Council and its affiliated unions for clearing workmen for the job before workmen are put to work thereon " It further alleged in substance that the Company on about July 3, 1950, refused to employ Paul Esparza unless he ob- tained a clearance from the Union and because he had not obtained such clear- ance ; and that the Union on about July 3, 1950, and thereafter refused to give said Esparza a job clearance slip which was required as a condition of employ- ment under the invalid provisions of said contract. Paul W. Speer, an individual, hereinafter called Speer, joined in an answer filed by the Company on December 15, 1950. In this answer the Company denied that it was in any way connected with the matter alleged in the complaint. Speer, in this answer, claimed to be the proper respondent, and as such admitted that he had made a contract containing the provisions alleged in the complaint but denied that it was illegal or invalid and he denied that he or anyone with authority to act on his behalf had refused to employ said Esparza under color of any illegal or invalid contract. The answer of the Union, riled December 18, 1950, denied the commission of the alleged unfair labor practices. The Council filed an answer on December 28, 1950, denying the commission of any unfair labor practices. The three answers raised objection to jurisdiction of the Board on the basis of commerce. Pursuant to notice, a hearing was held on January 26 and 30, 1951, at Los Angeles, California, before me, the duly designated Trial Examiner. The charg- ing party appeared for himself. The other parties were represented by counsel. ' Herein called General Counsel and Board, respectively. Counsel appearing at the hearing on behalf of the General Counsel also will be referred to as General Counsel. PAUL W. SPEER, INC. 223 The charging party participated only as a witness. All the other parties par- ticipated in the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of his case, the General Counsel moved to amend the complaint by adding the name of Paul W. Speer, an individual, as a respondent. The motion was granted, Speer having already appeared, answered, and waived service of notice.' At the same time the Union moved to dismiss the complaint for want of jurisdiction and on the merits, and counsel for the Company and for Speer in- dividually also moved to dismiss for want of jurisdiction in the sense that he was not engaged in a business affecting interstate commerce. Ruling was reserved thereon until after the remainder of the evidence was in At the close of the evidence, the Union renewed its notion to dismiss. After hearing oral argument, 1 granted the motions to dismiss on the ground that, although the operations of Speer were substantial and not wholly unrelated to interstate commerce, it would not effectuate the policies of the Act for the Board to take jurisdiction. I did not rule on the motion to dismiss on the merits. On May 4, 1951. following a request for review by the General Counsel, the Board rendered a decision 3 in which it held that it would effectuate the policies of the Act to assume jurisdiction in this case, reversed the order dismissing the complaint, and remanded the above-entitled cases to the undersigned for appro- priate action, including the preparation and issuance of an Intermediate Report and Recommended Order. The undersigned served notice on the parties that briefs or proposed findings of fact and conclusions of law or both might be filed ,with him on June S. None was received by that date. Upon my observation of the witnesses and upon the entire record in the case, 1 make the following : FINDINGS OF FACT 1. THE BUSINESS OF SPEER AND THE COMPANY Before September 26, 1949, Speer was engaged in the general contracting busi- ness as a partner in a firm doing business under the name of Structon. After dissolution of the partnership he continued in the same business individually under his own name. During the year 1950 Speer, as an individual, had a con- tract for the construction of a community auditorium for the county of Los Angeles at a cost of $165,284.78 which he completed in August 1950; a contract to build additions and alterations to the Los Angeles plant of the General Paint Corporation (a company doing an interstate business on a substantial scale) at a cost of $278,342.07 which construction was nearly completed at the date of the hearing ; ' and a contract to build a health center building for the Los Angeles Parent-Teachers Association (the place where the charging party sought em- ployment) at a cost of about $499,476, which work was about 75 percent com- 3 From the evidence, it appeared that Sneer was the one whose conduct was complained of in the charge and complaint and that the Company was named a respondent orig- inally through confusion of identities. Although I believe that the proper motion should have been to strike the "Inc." from the name of the Respondent named in the complaint, as In the case of a misnomer, rather than to add Speer as a Respondent, I considered the motion made by the General Counsel to be intended to have the same effect as a motion to amend as to the name of the Respondent. I have, therefore, deemed the Company, to be affected by these proceedings only as a successor to Speer's business As Speer is president and was, at the time of the hearing, sole owner of the Company, so close an identity exists between them that the Company could be deemed his alter ego, justifying the naming of both as though they were a single respondent. 3 94. NLRB 317. 4 It was on the basis of this contract that the Board assumed-jurisdiction. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pleted at the time of the hearing. These are the only contracts undertaken by Speer individually. In the summer of 1950, after July, the Company was incorporated, but it did not take over any of the foregoing contracts; it took only pew contracts thereafter made. Although the Company did not take over any of the contracts made by Speer, it continued with the same staff of employees and used such of them as were not working on Speer's contracts. Also, pre- sumably, it will benefit by the good will of the business of the man whose name it bears. The Board has, as previously stated, found Speer to be engaged in commerce within the meaning of the Act. H. THE ORGANIZ ATIONS INVOLVED International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, and Los Angeles Building and Construction Trades Council are labor organizations admitting to membership, or representing employees of, Speer and the Company. III. THE UNFAIR LABOR PRACTICES A. The closed-shop cmi ti act, On September 26, 1949, Speer entered into an agreement with the Council of the 12 southern California counties , agreeing to employ or cause to be employed upon any and all work which came under the jurisdiction of the Council, and on all work performed by him or his subcontractors within the jurisdiction of the Council and affiliated unions only members in good standing in the organization "to which the work properly belonged," in accordance with the wage scales, classifications, and working rules of the union having jurisdiction ; and agree- ing that before starting work within the jurisdiction of the Council he would get in touch with the Council in the jurisdiction where the w-oik was to be performed, and would comply with the requirements of the Council and its affiliated unions for clearing workmen to the job before they were put to work thereon. The execution of this agreement is in itself a violation of Section 8 (a) (1) and (3) of the Act by Speer and a violation of Section 8 (b) (1) (A) and (2) of the Act by the Council.5 This contract was made by the Council on behalf of the Union 6 and the latter gave effect to it by its practice of issuing clearance slips to workmen and by the practice of the Union's business agent in checking men on the job. Hence I find that, in executing the illegal closed-shop contract, the Council acted as agent for the Union and the Union by giving effect thereto has likewise violated Section 8 (b) (1) (A) and (2) of the Act. In the summer of 1950 Speer was constructing a building known as the Parent- Teachers Association Medical Health Center, hereinafter referred to as the P. T A. building On July 3, 1950, Paul Esparza applied at the site of the work for a job. James McIntosh, the timekeeper, who had authority to employ laborers at the instructions of the foreman or superintendent, having such in- structions to hire a few men for emergency work, in conformity with his instruc- tions in such cases, and in conformity with Speer's agreement with the Council, gave Esparza a note requesting a clearance for him and told him to take it to 6 New Yoi k State Eni ploiners Association, Inc, 93 NLRB 127; Carpenter & Skaer, Inc, 93 NLRB 188; Childs Co., 93 NLRB 281 6 The International Union's constitution requires locals, of which the Respondent Union here is one , to affiliate with building and construction trades councils, and the local con- stitution requires such affiliation The constitution of the International gives the Council jurisdiction and control over all matters relating to agreements with employers for work within its territorial jurisdicton. PAUL W. SPEER, INC. 225 the Union for clearance so that he could go to work that morning. Esparza took the note to the headquarters of the Union for the purpose of following the usual procedure of procuring a clearance slip Samuel Jefferson , the agent in whose district the P. T. A. building was situated , was not present at the union hall at the time, and the secretary to the field manager told Esparza that he would not be in until 9 or 10 a. in. Esparza showed his note to the secretary and waited for an hour or two, but as he had expected to start on the jot) at 8 a m.. he became- impatient and left. On July 5 he returned to the Union again He again was' unsuccessful because of the absence of Jefferson The testimony of the field- manager's secretary and of the business agent was at variance as to the need for the business agent's approval of the man bringing the slip The agent testi- fied that it was not necessary, but the secretary testified that she always referred them to him for approval before sending the man to the dispatcher. When Esparza failed to get his clearance, he went to the Regional Office of the Board where he was told that he did not have to be cleared and to go back and tell the Union that he was going to complain to the Board. Esparza re- turned to the union ball and spoke to Ray Waters, the Union's financial secre- tary, giving him this message. Esparza testified that Waters told one Martin that Esparza had paid his dues and should be cleared and that Martin had said that Jefferson said "No " I do not find that J6-terson in fact said so but I find that Esparza had good reason to believe that he would not be cleared for the 1' T. A. job. Waters admitted that Esparza had told him where he wanted to go to work and that he told Esparza that was in Jefferson 's territory and that Jefferson would soon be coming in. If Jefferson 's approval had not been needed, Waters could have sent Esparza direct to a dispatcher to get clearance. Esparza returned to the Parent-Teachers job and told McIntosh that the Board agent had told him he did not need a clearance . McIntosh , however, refused to put Esparza on the job without a clearance from the Union. On the foregoing facts it is plain that Speer discriminated against Esparza because he had not been cleared by the Union, thereby interfering with, re- straining, and coercing employees in the exercise of the rights guaranteed in the Act, in violation of Section 8 (a) (1) and (3) of the Act. Although I find that 'the evidence does not establish a final refusal by the Union to issue a clearance to Esparza , I conclude and find that the Union's practice of requiring clearances and its insistence that Jefferson alone could clear Esparza prevented the latter from being employed on July 3 and 5 and that the Union thereby restrained and coerced Esparza in violation of Section 8 (b) (1) (A) of the Act? IV. TRIP EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Speer set forth in Section III, above , occurring in connection with his operations described in Section I, above, have a close, intimate, and sub- stantial 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 Since it has been found that the Respondents Speer, the Union, and the Coun- cil have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . Inasmuch as the practices of Speer and the T See American Pipe and Steel Corp, 93 NLRB 54. Pinkerton National Detective Agency, 90 NLRB 205 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union prevented Esparza from being employed on the job, it will be recom- mended that they jointly and severally make him whole for any loss he may have suffered as a result thereof by paying to said Esparza an amount equal to that which he would have earned from July 3, 1950, to July 18, 1950, the date when in the normal course of events he would have been laid off for lack of work, less his net earnings' during said period. That he was hired for temporary work is plain, but the exact time during which his employment might have continued is somewhat speculative. There was evidence, however, that would justify a finding that he would have been employed until about July 18, and I so find.' CONCLUSIONS OF LAW 1. International Hod Carriers' and Common Laborers' Union of America, Local 300, AFL, and Los Angeles Building and. Construction Trades Council 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 Paul -Esparza and other employees, by executing and giving effect to an illegal closed- :shop contract, thereby encouraging membership in the Union, Speer has engaged in and is engaging in unfair labor practices within the meaning of Section :8 (a) (3) of the Act. 3. By the conduct stated in paragraph 2, above, Speer has interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 4. By causing Speer to discriminate in regard to hire and tenure of employ- ment of employees in violation of Section 8 (a) (3) of the Act by means of an unlawful closed-shop contract executed by the Council and given effect by the Union, the Union and Council each has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing employees in the exercise of the rights guaran- teed in Section 7 of, the Act, as herein found, the Union and the Council each has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] s Crossett Lumber Company, 8 NLRB 440. s Since there is no showing that the Council participated in the conduct affecting Esparza, it will not be recommended that it participate in making him whole. See New York State Employers Association, Inc., 93 NLRB 127. In computing back pay, see F. W. Woolworth Company, 90 NLRB 289, to the extent applicable here. AMERICAN MANUFACTURING COMPANY OF TEXAS and UNITED STEEL- WORKERS OF AMERICA, CIO. Case No. 16-CA-233. February 21, 1952 Decision and Order On June 6, 1951, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in, and was engaging in, certain unfair labor 98 NLRB No. 48.