F. H. McGraw and Co.

F. H. McGRAW AND COMPANY Appendix A NOTICE TO ALL EMPLOYEES 695 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 employees that : WE WILL bargain collectively upon request with INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA (UAW--CIO) , as the exclusive repre- sentative of all employees in the bargaining unit described herein, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All mechanics, partsmen, washrack men, bumpers, and painters at the Employer's establishment located at 5454 Cass Avenue, Detroit, Michigan, excluding salesmen, office and clerical employees, guards, and supervisors as defined in the Act. 1`7L WILL NOT in any other manner interefer with the efforts Of INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), to negotiate for or represent the employees in the aforesaid unit as their exclusive bargaining agent. Louis ROSE COMPANY, Employer. Dated -------------------- By -------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. F. H. MCGRAW AND COMPANY and ALBERT G. HENRY INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. L. AND ITS LOCAL 181 and ALBERT G. HENRY. Cases Nos. 9-CA-380 and 9-CB-108. June 13, 1952 Decision and Order On November 23, 1951, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents, F. H. McGraw and Company and International Union of Operating Engineers, AFL,, and its Local 181 , had engaged in and 99 NLRB No. 116. 696 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD u ere engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in- the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint, and recommended dismissal of those allegations. Thereafter, each of the Respondents and complainant Henry filed exceptions to the Intermediate Report and supporting briefs. 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 Interme- diate Report, the exceptions, the briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions. 1. The Trial Examiner found, and we unanimously agree, that the record establishes that the complainant Henry applied to the Respond- ent'Company for a supervisory position only. Recently in Pacific American Ship Owners Association,2 the majority of a three-member Board panel held that former supervisors of a shipping company who were reapplying for supervisory positions were not entitled to the pro- tection of Section 8 (a) (3) of the Act. For the reasons stated in that decision we find here that Henry, in applying for a supervisory posi- tion, was not entitled to such protection. Accordingly, we shall adopt the Trial Examiner's recommendation and dismiss the complaint inso- far as .it -alleges'that the-Respondent Company, discriminated--against him in violation of Section 8 (a) (1) and (3) of the Act, and that the Respondent Union attempted to cause and did cause such discrimina- tion in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.' 2. The Trial Examiner has recommended that the Respondent Com- pany and the Respondent Unions cease giving effect to the unlawful closed shop or preferential hiring provisions in their signed and oral contracts at any of the Company's projects. The Company and the Unions take issue with this recommendation on the ground that all of the evidence was confined to the Paducah project. We can perceive no valid reason for limiting our order here to that one project. On this issue we are unanimous. James Moran, the Company's industrial relations director, admitted at the hearing that in a recent representation case, involving the same project, he had testified that the signed contract between the Inter- national and the Company had been automatically renewed and was 1 The Respondent Company's request for oral argument is denied, because the record and briefs, in our opinion, adequately present the issues and positions of the parties. 98 NLRB 582. Member Murdock does not agree with the dismissal of the complaint as to Henry, for Seasons fully set forth in his separate partial dissent. F. H. MCGRAW -AND COMPANY 697 then in effect .4 He further identified the Local's unsigned agreement and stated that it was his understanding that the Company had agreed to be bound by it. As the Company is engaged in general construction contracting throughout the United States, it appears that any remedy of more limited scope than that recommended by the Trial Examiner might permit the Company and the Unions to engage elsewhere in the very conduct here found to be unlawful 5 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent F. H. McGraw and Company, Paducah, Ken- tucky, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Including in its employment applications any question con- cerning membership in labor organizations or otherwise interrogating employees or applicants for employment regarding their union affilia- tion. (b) Requiring employees or applicants for employment at any of its projects, including its project near Paducah, Kentucky, to obtain clearance or job referrals from International Union of Operating Engineers, AFL, or its Local 181, or any other labor organization, as a condition of employment, except under a nondiscriminatory ar- rangement permitted by Section 8 (a) (3) of the Act. (c) Performing, enforcing, or giving effect to, at any of its projects, including its project near Paducah, Kentucky, the closed-shop or preferential hiring provisions of its current written collective bar- gaining agreement with International Union of Operating Engineers or its current oral collective bargaining agreement or understanding with Local 181 of said International, or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any super- * In the representation case, F. H. McGraw and Company, 96 NLRB 821, issued October 15, 1951, the Company and the Unions urged both the International and Local agreements as a bar. The Board there rejected this contention on the ground that both contained unlawful union-security clauses. 6 see Red Star Expre8s Linea of Auburn, Inc, 93 NLRB 127; enforced 196 F. 2d 78 (C. A. 2). The Unions further argue that under a general savings clause the Local 's agreement was purged of illegality by the Board's decision in the representation case. The savings clause in question provides that if any provision of the contract is held unlawful by any governmental authority , that provision shall no longer remain in effect . Regardless of whether or not the decision in the representation case on October 15, 1951, cured the Local's agreement, the fact remains that that agreement was in effect , with its unlawful union- security provisions intact, from January 1951 until after the hearing herein was con- cluded. In the circumstances, and without passing upon the possible curative effect of the representation case decision , we find that the Trial Examiner's recommended remedy Is appropriate to remedy past and prevent future violations. 698 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD seding agreements with the said labor organizations, containing union- security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. (d) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment at any of its projects, including its project near Paducah, Kentucky, in the exer- cise 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 purposes of collective bargaining or other mutual aid or protection, or 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 main office at Hartford, Connecticut, and at all projects now being operated by it at which shovel operators or opera- tors of other heavy excavation equipment are employed, including its Paducah, Kentucky, project, copies of the notice attached to the Intermediate Report marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent Company's representative, be posted by the Respondent Company immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Ninth Region, in writ- ing, within ten (10) days of the receipt of this Order, what steps it has taken to comply herewith. II. The Respondent, International Union of Operating Engineers, AFL, and its Local No. 181, their respective officers, representatives, and agents, shall: 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Company to engage in the practice of requiring employees or applicants for em- ployment to obtain clearance or job referrals from the Respondent Unions, or either of them, as a condition of employment, except un- 6 This notice, however , shall be, and it hereby is, amended by striking from the first paragraph thereof, the words "The Recommendations of a Trial Examiner " and substitu- ing in lieu thereof, the words "A Decision and Order ." 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." F. H. McGRAW AND COMPANY 699 der a nondiscriminatory agreement permitted by Section 8 (a) (3) of the Act. (b) Performing or giving effect to, at any of the projects of the Respondent Company, including its project near Paducah, Kentucky, the closed shop or preferential hiring provisions of the Respondent International's current written collective bargaining agreement with the Respondent Company or of the Respondent Local's current oral collective bargaining agreement with the Respondent Company, or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any superseding agreements with said Com- pany, containing union-security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. (c) In any other manner causing or attempting to cause the Re- spondent Company to discriminate against the Respondent Com- pany's employees or applicants for employment in violation of Sec- tion 8 (a) (3) of the Act. (d) In any like or related manner restraining or coercing employees or applicants for employment at any of the Respondent Company's projects, including its project near Paducah, Kentucky, in the exer- cise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post, in the case of the Respondent International, at its busi- ness office at Washington, D. C., and, in the case of both Respondent Unions, at the business office and meeting places of the Respondent Local at Paducah, Kentucky, notices in the form attached to the In- termediate Report marked "Appendix B." 7 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by representatives of the respective Respond- ent Unions, be posted by the Respondent Unions immediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by the Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Ninth Region signed copies of the notice attached to the Intermediate Report as Appendix 'This notice , however . shall be , and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut- ing in lieu thereof, the words "A Decision and Order." 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 " 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B, as herein amended, for posting, the Respondent Company willing, at the projects operated by the Respondent Company, including its -project at Paducah, Kentucky, and places where notices to employees are customarily posted. The notice shall be posted for a period of sixty (60) consecutive days thereafter. Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed as provided in paragraph 11 2 (a) above, be forth- with returned to the Regional Director for such posting. (c) Notify the Regional Director in writing within ten (10) days from the date of this Order what steps the Respondent Unions have' taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges a discriminatory refusal to hire Albert G. Henry. MEMBER MURDOCH, dissenting in part: In Pacific American Ship Owners Association,8 disagreeing with two of my colleagues, I fully set forth my view that merely by apply- ing for a supervisory position an employee member of the working class does not lose the protection against discrimination guaranteed by Section 8 (a) (3) ; that the Act properly construed, and as earlier construed by the Board in Briggs Manufacturing Company; excludes from protection as a "supervisor" only those individuals presently employed by, and possessing supervisory authority to act for, a par- ticular employer. I adhere to my position on the proper construction of the Act and refer to my dissenting opinion in the Paci fic-American case for the complete statement of my views instead of repeating them here. Accordingly, to the extent that the majority opinion holds that Henry could be discriminated against with impunity simply because he was an applicant for a supervisory position, I dissent. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Albert G. Henry on February 12, 1951, and subse- quently amended, the General Counsel of the National Labor Relations Board for the Ninth Region ( Cincinnati, Ohio ), following the consolidation of the above- entitled cases pursuant to Section 102.33 of the Board's Rules and Regulations, Series 6, issued his complaint , dated August 16, 1951, against F. H. McGraw and Company, herein called the Respondent Company, and against International Union of Operating Engineers, A. F. L., and its Local 181, herein called re- spectively the Respondent International and the Respondent Local, and, together, the Respondent Unions, alleging that the Respondents engaged in unfair labor practices affecting commerce , the Respondent Company within the meaning of Sections 8 (a) (1) and (3) and 2 (6) and ( 7) of the National Labor Relations 8 98 NLRB 582 9 75 NLRB 569. F. H. MCGRAW AND COMPANY 701 Act, 61 Stat. 136, herein called the Act, and the Respondent Unions within the meaning of Sections 8 (b) (1) (A) and (2 ) and 2 (6) and (7) of the Act. With respect to the unfair labor practices the complaint alleged in substance: 1. That the Respondent Company since on or about January 1, 1951, violated Section 8 ( a) (1) of the Act by questioning its employees in regard to their union membership, and by including in, its, employment applications a question as to the membership of job applicants in labor organizations. 2. That since on or about January 1, 1951, the Respondent Company violated Section 8 (a) (1) and (3) of the Act, (a) by entering into and enforcing closed- shop agreements, understandings , and practices with the Respondent Unions, and (b) by discriminatorily refusing to employ Albert G. Henry because of his nonmembership in the Respondent Unions. 3. That since on or about January 1, 1951, the Respondent Unions violated "Section 8 (b) (1) (A) and (2 ) of the Act, (a) by entering into, attempting to enforce, and enforcing the agreements, understandings , and practices adverted to in the preceding paragraph, and (b) by attempting to and causing the Respond- ent Company to discriminate against Albert G. Henry as well as against other employees in violation of Section 8 (a) (3) of the Act. The Respondent Company and the Respondent Unions filed answers to the com- plaint. The Company admitted in substance the allegations of the complaint re- lating to the nature of its business operations , but denied generally that it had committed the unfair labor practices alleged. The Respondent Unions denied knowledge or information as to the correctness of the complaint's allegations relating to the Respondent Company's business operations, and denied generally the allegations of the complaint attributing to them the commission of unfair labor practices. Pursuant to notice, a hearing was held at Paducah, Kentucky, on September 10 and 11, 1951, before Arthur Leff, the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence was afforded all parties. Motions made by the Respondents at the opening of the hearing, and thereafter renewed, for a 2-week postponement of the hearing, were denied. Also denied were motions made by the Respondents for the severance of the two cases which had been consolidated. At the close of the case, motions were granted without objec- tion to conform the pleadings to the proof with regard to minor variances only. All parties were afforded the opportunity to argue orally upon the record and to submit briefs as well as proposed findings of fact and conclusions of law. After the hearing a brief was filed by the General Counsel. Upon the entire record in the case, and from my observation of the witnesses, T make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT COMPANY F H McGraw and Company, a New Jersey corporation, having its principal « flice at Hartford, Connecticut, and offices in various other parts of the United States, is engaged in the business of general construction contracting throughout the various States of the United States. The Respondent Company in the course of its business operations causes substantial quantities of materials, supplies, and equipment used by it to be purchased, delivered, and transported in inter- state commerce into the various States where it is engaged in construction opera- tions from and through States of the United States other than such States. The 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company performs a substantial amount of services for companies engaged in interstate commerce. It also is a prime contractor for the Govern- went of the United States. At present it is engaged in the construction of a plant for the United States Atomic Energy Commission, an agency of the Government of the United States, on land owned by the United States Government near ,Paducah, Kentucky, formerly known as the Kentucky Ordnance Works. At this construction project, involving a plant which covers many square miles and which when completed will be engaged in operations substantially affecting the national defense, the Respondent Company now employs approximately 10,000 employees. This project was begun in January 1951 and is expected to take about 21/2 years from that date for completion. The value of the materials, supplies, and equip- ment used by the Respondent Company on that project exceeds by far $1,000,000. A substantial quantity of such materials, supplies, and equipment is transported in interstate commerce into the State of Kentucky from and through States Of the United States other than the State of Kentucky.' The Board has previously asserted jurisdiction over the Respondent Company in a proceeding-in which the Respondent Local was a party. F. H. McGraw, & Co., 96 NLRB 821. It is found that the Respondent Company is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case.' II. THE ORGANIZATION INVOLVED International Union of Operating Engineers, A. F. L., and its Local 181 are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Violation by the Respondent Company of Section 8 (a) (1), by the inclusion in its employment applications of a question concerning the membership of job applicants in labor organizations The Respondent Company now regularly uses, as it has for some time in the past, an employment application form on which prospective employees are re- quired among other things to state in what unions, if any, they hold membership. Each job applicant is required to fill out this form as a step in the processing of his application. The inclusion in the Respondent Company's application forms of the union interrogatory is attacked in the complaint as illegal. The Board, with court approval, has consistently held that to require job applicants to disclose on such forms whether or not they are union members is to engage in conduct that is no less violative of the Act than oral interrogation I The findings of fact with regard to the business of the Respondent Company are based in part upon allegations of the complaint that are admitted in the Respondent's Company's verified answer In addition to the admissions contained in the Respondent Company's answer, independent testimony was adduced to establish that the Respondent Company's operations are multistate in character ; that the Respondent's annual purchases crossing State lines exceed $1,000,000 in value ; and that the construction project in which the Respondent Company is now engaged near Paducah, Kentucky, is one that substantially affects national defense. Although contesting the jurisdiction of the Board, the Respondent Unions made no attempt at the hearing to litigate the question of jurisdiction and pre- sented no evidence that might tend to contradict the admissions contained in the Re- spondent Company's answer or the testimony which was adduced by the General Counsel to support the commerce allegations of the complaint a'See N. L R. B. v. Denver Building & Construction Trades Council, 341 U. S.-675 ; The Borden Company, 91 NLRB 628; Federal Dairy Co, Inc., 91 NLRB 638; Westport Moving and Storage Company, 91 NLRB 902. F. H. MCGRAW AND COMPANY 703 concerning union affiliation or activity.3 The possibility. that such disclosure may be useful in evaluating an applicant's experience provides no defense. Other methods are available for determining experience that do not call for an invasion of employee rights under the Act. As interrogation is a violation of the Act per se, it is unnecessary to show abuses resulting from the interrogation as a predicate to a finding of illegality. Even if such a showing were necessary, it is amply made out in this case, for, as more fully appears below, the record supports a finding that the employment applications are utilized by the Respond- ent Company as part of its hiring arrangements which themselves are violative of Section 8 (a) (1) and 8 (a) (3) of the Act. It is found that, by questioning job applicants concerning their. union member- ship, the Respondent violated Section 8 (a) (1) of the Act. B. Violation by the Respondent Company of Section 8 ( a) (1) and 8 (a) (3) of the Act, and by the Respondent Unions of Section8 ( b) (1) (a), and 8 ( b) (2) as the result of closed-shop or preferential hiring agreements, understandings, and practices Under date of July 29, 1948, the Respondent Company and the Respondent international entered into a written collective-bargaining agreement, designed to cover the Company's operations on a Nation-wide basis. The provisions of this agreement pertinent to this proceeding are as follows : The Company agrees to pay the scale of wages, work the schedule of hours and conform to the conditions of employment 'in force and effect in the locality in which the Company is performing or is to perform work. The Company agrees also to employ only members in good standing in the Union. on work coming under its jurisdiction. [Emphasis supplied.] .s s s s s s t The Union agrees to extend to the Company the same scale of wages, hours of work and conditions of employment as are in force and effect for other employers in the locality in which it is performing or is to perform work. t # t t i • Foremen or Master Mechanics may be selected by the Company and shall at all times represent its interests. They may be members of the Union. s s + s s a s This agreement is dated July 29, 1948, and shall continue from year to year thereafter unless notice is given in writing by either party to the other party (60) days prior to date of expiration; but the parties may mutually agree to i change or amend any part of this agreement at any time. The July 29, 1948, contract is still in effect, having been automatically renewed from year to year in accordance with its terms. Up to the time of the hearing, there had been no alteration or amendment of the contract. The last renewal date was July 29, 1951, and as it now stands the contract will not expire for at least a year from that date. The Nation-wide contract is interpreted by the parties as requiring the Re- spondent Company not only to recognize and deal, with the Respondent Interna- e See, e. g , The M. H. Davidson Company, 94 NLRB 142 ; Standard Dry Wall Products, %nc., 91 NLRB 544; The Post Printing and Publishing Company, 90 NLRB 1820. See generally , Standard-Coosa-Thatcher Company, 85 NLRB 1358 and see, also , H. J. Heinz Co. V. N. L. R. B., 311 U. S. 514, 518 ; N. L. R. B. v. Fairmont Creamery Co., 169 F. 2d 169, 170 (C. A. 10) ; Joy Sslly Mills v. N. L. R. B., 185 F. 2d 732, 743; Texarkana Bus Corp v. N. L. R. B., 119 F. 2d 480, 483 (C. A. 8). 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional as the representative of employees falling within the International's craft jurisdiction, but also to recognize and deal with the International's local union which has territorial jurisdiction in the particular local area where the Company may be engaged in a construction project. In practice, the Respondent Company does not execute separate written agreements with the locals, but it does "pick up" and abide by the terms and conditions of prevailing local contracts wherever they exist. In December 1950 or January 1951, the Respondent Company entered into a contract,. with the Atomic^Energy Commission for the construction of a plant near Paducah, Kentucky. The construction project required the services of a substantial number of employees within the craft jurisdictional lines of the Re- spondent Unions. Hiring began about the beginning of 1951. At that time there was in existence-and there still is-a standard area-wide collective-bargaining agreement governing the relationship between construction contractors and the Respondent Local, the Local to which the Respondent Inter- national has assigned territorial jurisdiction over most of Kentucky, including the Paducah area. The standard area agreement then in effect-running from July 1, 1950, to June 30, 1951, and providing for automatic renewal at the end of the contract year absent timely notice of modification or cancellation-sets out the wages, hours, and terms and conditions of employment with regard to employees falling within the craft jurisdiction of the Respondent Unions. It contains among other stipulations the following: The CONTRACTOR agrees to employ, through the office of Local 181, only members who are in good standing with the UNION in payment of their dues, to operate all machinery and equipment. Good standing members of the UNION shall be interpreted to mean those who are not under discipline or penalty invoked by the UNION. Upon written notice by the UNION to the CONTRACTOR, through registered mail that a certain individual or individuals are not in good standing, it shall be sufficient notice for the removal of the individual from the job, under terms of this contract. The UNION shall have forty-eight (48) hours notice to fulfill request for operators. When the Respondent Company began work at the Paducah project, it recog- nized the Respondent Local as the bargaining representative of employees in the job classifications covered by the standard area-wide agreement. It has since continued to recognize and to deal with the Local as such representative. As appears from the testimony of company officials, this was done in compliance with the Company's Nation-wide contract with the International. In accordance with its general- practice, the Respondent Company did not formally execute a separate written collective-bargaining agreement with the Respondent Local. But, as testified by James R. Moran, the Company's director of industrial rela- tions, the Company nevertheless "agreed" to carry out the written terms and conditions of the standard uniform area-wide contract in use between the Re- spondent Local and construction contractors performing work within the Local's territorial jurisdiction. In its dealings with the Respondent Local, the Respond- ent Company has acted within the framework of that contract, just as if it had been a signatory thereto. It has not only attempted to follow all the terms and conditions of employment as there set out ; it has also negotiated with the Re- spondent Local on grievances arising from asserted departures from contractual provisions. The Respondent Local, too, has regarded the standard area-wide contract as binding on the Company, although unsigned by it. In grievance nego- tiations, the Respondent Local has taken the position-apparently undisputed by the Company-that the Company was obliged to follow the terms and condi- tions of the standard local contract to which it had "agreed verbally." And in F. H. McGRAW AND COMPANY 705 a representation proceeding instituted upon petition of a rival union seeking an election among at least some of the covered employees, the Respondent Local, appearing as an intervenor, joined the Respondent Company in contending that the petition was barred by (1) the written Nation-wide agreement of July 29, 1948, between the Respondent Company and the Respondent International, and (2) the local area agreement between the Respondent Local and the Respondent Company which had been orally adopted by the Company.' In its hiring practices at the Paducah project, the Respondent Company has conformed in Substance to the contractual requirement to employ operating engineers only through the office of the Respondent Local, unless such men were unavailable from that source. The following hiring procedure has been employed by the Respondent Company since the inception of the project: Upon receipt of a requisition slip from the department head calling for a certain number of operating engineers in described classifications, the Company's personnel dfce contacts the business office of the Respondent Local, usually by telephone, and requests the dispatch of qualifying applicants. The Local then sends to the Company's office the number of men requested, each with a referral card from the Local, showing his name, craft, and prevailing rate. The men referred are- then processed by the Respondent's employment office and, if _ found qualified and cleared as to security, are hired. This hiring procedure was worked out between the Respondent Company and the Respondent Local at the time the project began. During the approximately 8 months' period elapsing between that time and the time of the hearing, all craft employees within the recognized jurisdiction of the Respondent Unions were hired through the Respondent Local in accordance with the procedure outlined above; none was hired without clear- ance from the Respondent Local' At least until the hearing, the Respondent Local never failed to meet the Company's requirements-for operating, engineers. For that reason, and because under its arrangements with the Respondent Unions the Company is obliged to look to the Local originally for its source of supply, the Company has not sought such employees in the open labor market e In supplying operating engineers to the Respondent Company, the Respondent Local has not invariably required that individuals referred for jobs to the Company be union members. There have been occasions when nonmembers were cleared. As a matter of normal policy, however, the Respondent Local has followed the practice of clearing applicants in the following order of prefer- ence : (1) Local union members ; (2) members of other locals of its International ; and (3) nonmembers. Under no circumstances will the Respondent Local ever clear for employment with the Company any member, either of its own or another local, who is then in arrears in union dues. Nonmembers, as well as members of other locals of the International, who are cleared, are required to pay the Local a permit fee. * The finding in this respect is based upon findings made by the Board in its Decision and Direction of Election in F. H. McGraw & Co., 96 NLRB 821, of which judicial notice is taken. The Board in that representation proceeding overruled the "contract bar" con- tention of the Respondent Company and the Respondent Local, "for the reason, among others, that [the contracts relied on]i contain illegal union-security clauses requiring the Employer to hire only union members, if available." 5 According to testimony of Respondents' witnesses, however, no applicant applied per- sonally in the first instance at the Company's employment office during that period. This testimony stands uncontradicted except in the case of Albert Henry, separately discussed in a succeeding section of this Report. The bulk of the testimony at the hearing related to the practices of the Company at its Paducah project. However, one official of the Respondent Company admitted while testifying that the same pattern of hiring through locals of the Respondent International was followed at other projects of the Company with which he was familiar. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges in substance, and the Respondents deny, that "since on or about January 1, 1951,"' the Respondent Company "by entering into and enforcing ... [the] agreebn6iits, understandings and practices" outlined abdve, Violated Section 8 (a) (1) and (3) of the Act, and that the Respondent Unions, by their corresponding participation in such agreements, understandings, and practices, violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act. No viola- tion of Section 8 (a) (2) is alleged. It is clear that the contract between the Respondent Company and the Respond- ent Union of July 29, 1948, which, it is found, continued to remain in effect after January 1, 1951, provided in form for a closed shop. Contrary to the contention of the Respondent Unions, the record does not support a finding that the Nation- wide contract was superseded by the standard area-wide contract, which, it is found, the Respondent Company and the Respondent Local orally agreed to adopt as applicable to the Company's Paducah operations. The record leaves little doubt that the mutual understanding to be bound by the provisions of the prevail- ing local contract represented the performance or enforcement of a contractual covenant in the Nation-wide contract, and was designed to supplement rather than to supersede the basic contract. In any event, the area-wide contract does hot substantially alter the closed-shop provision of the basic contract, except to make it clear that the Company is to be free to hire independently of the Union if. but only if, the Union is unable to fulfill the Company's requirements. Whether characterized as a closed-shop provision or a preferential-hiring provision, it is obvious that the existing arrangement runs afoul of the proscriptions of the Act with regard to conditioning the hire or tenure of employment upon union mem- bership. On its face, it requires the Company to hire only union members in good standing, if available. This is plainly at variance with Section 8 (a) (3) which prohibits a contractual requirement of union membership as a condition of employment except on or after the thirtieth day of employment.' There is no merit, to. the, contention of the Respondent Unions that the agreed-upon hiring arrangement was saved from illegality, because the Company was left free to hire employees regardless of their union membership when the Union was unable to supply men. An agreement requiring that union employees be given preference in hiring is no less illegal than one which restricts an employer to their exclusive hiring.' Nor is a different conclusion indicated by the showing made that the Union did on occasions refer nonunion men to the Company. For, as has been seen, the Respondent Local-acting within the framework of its existing arrange- ment with the Company-admittedly followed as a matter of normal policy the practice of preferring its own members and members of other locals of its parent international over nonunion men, and of never referring union members who were in arrears in dues. The principal defense, at least of the Respondent Company, appears to be that the Board is precludedmt this time from attacking the close-shop or preferential- hiring practices now in effect, because they stem from the contract of July 29, 1948, executed more than 6 months before the filing and service of the charges giving rise to this proceeding. With this defense I am unable to agree. The Gen- eral Counsel does not contend in this proceeding that the execution of the 1948 ° Moreover, prior to the amendment of October 22, 1951 (Public Law 189. 82nd Congress. 1st Session), it was illegal to require union membership even after the thirtieth day of employment, unless authorized by an election conducted under Section 9 (e) as it then lead. Since, so far as appears, the union-security provisions under both the 1948 Nation-wide contract and the adopted area-wide contract were never authorized by an election among the employees involved, the obligation to discharge, upon notice from the Union, any individual not in good standing was illegal for this additional reason. ' Consolidated Western Steel Corporation., 94 NLRB 1590; Mandel Cork Corpoi ation, 96 NLRB 1142 F. H. McGRAW AND COMPANY 707 contract should be found to constitute an unfair labor practice ; indeed, he ex- pressly, and properly, concedes that the provisions of Section 10 (b) of the Act bar a present finding to that effect. His pleading is based entirely upon what occurred after January 1, 1951, within the 6-months period limited by Section 10 (b). The record shows that after that date the Respondent Company in partici- pation with one or both of the Respondent Unions engaged in the following con- duct which, it is found, was independently violative of the Act. (1) After January 1, 1951, the Respondent Company and the Respondent Inter- national continued in existence and maintained in effect the 1948 contract includ- ing the unlawful closed-shop provisions thereof.' (2) In January 1951, the Respondent Company and the Respondent Unions performed and enforced that contract in accordance with its terms by extending its 'application to cover the Company's new construction project near Paducah. (3). By refraining to take steps to cancel or amend the 1948 contract during the appropriate period in 1951, the Respondent Company and the Respondent International jointly acquiesced in the automatic renewal of that contract, in- cluding its unlawful union-security provisions, thereby in effect entering into a mutual agreement for the extension of that contract for an additional year after July 29, 195110 (4) In January 1951, the Respondent Company and the Respondent Local entered into a verbal agreement or understanding to adopt and enforce at the Company's Paducah project the provisions of the prevailing Local area-wide standard agreement governing terms and conditions of employment of em- ployees within the Union's craft jurisdiction, including the unlawful preferential- hiring provisions of that contract referred to above." (5) After January 1, 1951, the Respondent Company and the Respondent Unions, substantially enforced and gave effect to the illegal union-security pro- visions of the 1948 contract as supplemented by the unexecuted but mutually adopted Local area-wide contract, by following and acquiescing in hiring pro- cedures and practices wliereby prospective employees were requisitioned solely through the Respondent Local and by it referred to the Respondent Company on a preferential basis which gave priority to union members in good standing." One further argument of the Respondent Company warrants mention. The Local area-wide standard agreement contains a general savings clause, dis- claiming any intent "to violate any laws or any rulings or regulations of any Governmental authority or agency having jurisdiction of this Agreement," and providing that if any provision is "held or constituted to be void," the remainder of the agreement, unless inseparable, shall nevertheless remain in full force and effect. At the hearing, the Respondent Company contended that this clause precluded the illegal union-security clauses from taking effect and saved the Respondents from any violation of the Act. This argument fails to find support either in the facts or in the law. There is no evidence in the record to suggest that the parties intended to suspend or defer the application of the illegal union- security clauses. On the contrary, the further renewal in 1951 of the 1948 agree- ment without amendment, and the substantial performance by the parties since January 1, 1951, of the illegal hiring provisions of the Nation-wide and Local area-wide agreements unmistakably point to the opposite conclusion. Nor may the savings clause itself be fairly read to reflect any such intent. Reasonably See Childs Company, 93 NLRB 281. 10 See Heat and Frost Insulators' Union, et al., 92 NLRB 753 ; Childs Company, supra. u See Consolidated Western Steel Corporation, supra; Del E. Webb Construction Com- pany, 95 NLRB 75. 12 See Consolidated Western Steel Corporation, supra ; Del E. Webb Construction Com- pany, supra; Mundet Cork Corporation, supra; Utah Construction Co., 95 NLRB 196 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construed, it merely expresses an intent to sever from the contract any provision that may eventually be adjudicated void, but not until such adjudication is made, and without in the meantime affecting its operative force. Similar sever- ability clauses have consistently been held by the Board as ineffective to cure otherwise illegal union-security clauses in contracts between Employers and Unions" It is immaterial that the parties may not have desired to violate the law. The fact remains that they did ; and unless the illegality is here adju- dicated as such, and an appropriate remedial order made, the very existence of the contractual provisions will continue to operate as a restraint upon employee rights. Upon the record as a whole it is concluded and found that, by reason of the conduct in which they respectively engaged, itemized above as occurring after January 1, 1951, the Respondent Company violated Section 8 (a) (1) and 8 (a) (3) of the Act, and the Respondent Unions violated Sections 8 (b) (2) and 8 (b) (1) (A) of the Act 1' C. The alleged discrvtndnattry refusal to hire Albert G. Henry Albert G. Henry, a resident of Knoxville, Tennessee, had once been a member of the Respondent International, but had ceased paying dues in 1944, and at the time of the hearing was roughly $500 in arrears. In December 1950, the Respondent Company inserted an advertisement in a Knoxville newspaper for keymen to work on its Paducah project. Desirous of securing a position in a supervisory capacity, Henry contacted the Respondent Company at its Oak Ridge, Tennessee, office. Henry was briefly interviewed at that time and given an application form to fill out. In his written application he asked for a job as an equipment foreman, admittedly a supervisory position, at a requested salary of $225 a week." Later, after again contacting a company representative, Henry was told that hiring would be done at Paducah, and it was suggested to him that he contact John M. Curlee, the Company's deputy project manager at Paducah. On January 12, 1951, according to Henry's testimony, he called on Curlee at Paducah. Henry testified that after reminding Curlee of his earlier interview with him at Oak Ridge and discussing some of the jobs on which he had pre- viously worked, the following conversation ensued: He [Curlee] said, "Well, you wanted a job as foreman or something like that; is that right? And I said "I did," and he said "This is oui• equip- ment superintendent here," and we shook hands, and I said "Now, of course, now this is a new Company with me. I don't know the Company and the Company doesn't know what I can do. I have written here what I can do, but they don't know it, but I said, "It's understood I am to qualify myself for the job I am applying for," and he said "That's to be understood." s s o • r • t He [Curlee] said, "Well, I tell you," he said, "You go get cleared through the Local, the Union," and I said "Is that 181?" and he said "Yes," and he said "Come back and the job is yours." 1: See, e. 'g., Indiana Limestone Co., Inc., 92 NLRB 1337; Muntz Television, Inc., 92 NLRB 29; Reading Hai dware Corporation, 85 NLRB 610; Hickey Cab Company, 88 NLRB 327. 14 See, generally, and in addition to cases cited above, Acme Mattress Company, 92 NLRB 968, Wisconsin Axle Division, The Timkin-Detroit Axle Company, 91 NLRB 1010; New York State Employer s Inc., et at, 93 NLRB 127 At the hearing, Henry testified that he reallv-intended to isk for 8125 F. H. MCGRAW AND COMPANY 709 Henry testified that when he told Curlee , "It's understood I am to qualify myself for the job I am applying for," he meant by that he would have "to operate the rig and different kinds of rigs in a manner that [he] could prove [he] could handle the job as equipment supervisor." He admitted, however, that he did not voice that meaning to Curlee, and Curlee made no express state- ment to indicate that he attached a like meaning to Henry's remark. On that point, Henry's testimony was as follows : Q. (By Mr. Goldstein) Now when you talked to Mr. Curlee in Padu- cah . . . did you indicate to him in any manner that you would have to do something before you became an equipment foreman? A. Why, no, I didn't mention it to him in that sense. He seemed to be so well versed with the procedure that it was generally understood that you bad 'to take steps to be elevated or promoted to a foreman, as they see fit. * * * * * * * Q. Did you indicate to Mr. Curlee in any manner what these steps were that you were going to have to take before you became an equipment fore- man? A. Yes, and I had told him that I had been an equipment foreman before; I had that much experience, and-but I was willing to prove, and ready to prove, which I would do. And he said that was understood. . . . Q. (By Trial Examiner) Did Mr. Curlee tell you the procedure was that you had to work as an operator first? A. Sir? Q. Did he specifically tell you that? A. No, he didn't tell me I had to work as an operator first, but I don't know of any case where there has ever been an equipment foreman sent out except-well especially to a new Company, that they didn't know his qualifications. To pick up Henry's narrative-after he was told to get cleared through the Respondent Local, he contacted Rankin Connolly, the Local's business agent, and in a telephone conversation with him requested clearance through the Respondent Local to work for the Respondent Company. As appears from Henry's testimony, he stated as a reason for desiring clearance that : I wanted to lay the groundwork, to keep any resentment down if I could ever go through Local 181, and have the men that would work under me, if I were to be promoted foreman over them, I would belong to the same Local they belonged to, to keep down resentment, and I hope to go down there in the near future to become equipment foreman. Connolly refused Henry clearance. He told Henry that he had "plenty of men here in this Local" and as far as he was concerned Henry did not have "enough money to buy a book or card in [his] Local, until his membership has been depleted." Telephoning Curlee, Henry related his conversation with Connolly. Curlee remarked that his hands were tied by that decision. However, he promised Henry to see what he could do. But Henry never heard from Curlee again. Both Curlee and Connolly were called as witnesses. Curlee testified that he had no recollection of having conferred with Henry on January 12, 1951, explain- ing that he had seen hundreds of people at about that time. According to hint, he did not believe that he ever made any statement to Henry such as, "You get cleared through the Union and the job is yours." He declined, however, to state 215233-53-46 710 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD positively that there was no such conversation. Connolly, although recalling that he had spoken to Henry on another occasion concerning clearance for a job on another construction project, testified that he could not recall the telephone conversation to which Henry had referred in his testimony. Although stating at one point of his examination that he was "fairly positive" he neither talked to Henry on the telephone nor denied him clearance for work at the Respondent Company, he refused at another point to deny categorically that such a conversa- tion occurred. To the extent the testimony of Curlee and Connolly may be considered as in conflict with that of Henry, I credit Henry, who by his over-all testimony and demeanor impressed me as a sincere and candid witness. But even on this basis, I am not persuaded that the General Counsel has sustained his burden of proving the allegations of the complaint with regard to the discriminatory refusal to hire Henry. For, as the General Counsel concedes, in order to establish the failure and refusal to hire Henry as discriminatory within the meaning of the Act, it is essential to show that the job for which he was denied employment was of a non- supervisory character. And it is in that respect that the General Counsel's proof appears to me to fall short of the mark. While agreeing that the job for which Henry originally applied-that of equip- ment foreman--is a supervisory one, the General Counsel contends that this was not the job for which he was asked by Curlee to clear with the Respondent Local. The General Counsel bases his contention principally upon Henry's expressed willingness in his conversation with Curlee to "qualify" by proving his worth, and this he buttresses by pointing to uncontradicted testimony to the effect that the Respondent Company did not clear supervisory personnel through the Respondent Local. From these circumstances, lie would have me infer that Curlee, in stating to Henry that the job was his upon clearance from the Union, had reference to a nousupervisory job for which Henry would be hired at,least temporarily until he had established his qualifications for the supervisory position. The evidence upon which the General Counsel relies may be open to that interpretation ; yet I find it too equivocal substantially to support a legal infer- ence to that effect. The only job for which Henry had made written application was that of equipment foreman ; there had been no specific discussion of any rank-and-file job-such as shovel operator, crane operator, or bulldozer operator, to mention but a few within the union's craft jurisdiction-and the more reason- able inference to be drawn from the language used is that, in referring to "the job," using the definite article, Curlee was alluding to the only position for which Henry had applied and the only one under specific consideration. True, Henry expressed the understanding that he would have to qualify for that job, and Curlee agreed. But this exchange is too ambiguous upon which to rest a find- ing of a mutual understanding that'Henry was to be hired first in a nonsuper- visory capacity. To "qualify" for a job does not necessarily presuppose employ- ment in a rank-and-file capacity. That may have been in the mind of Henry, but, as his own testimony shows, he neither communicated it to Curlee nor did Curlee say anything to indicate that he shared that meaning. And from the form of the conversation itself, as reported by Henry, I am unable to conclude that what was Henry's intent was also Curlee's. The fact that Curlee asked Henry to clear through the Union, a practice ordinarily confined to nonsuper- visory personnel, does, to be sure, suggest that Curlee may also have intended a rank-and-file job for Henry. But even this additional circumstance does not in my opinion provide a sufficient basis for such a finding. For it is equally open to the interpretation that the Company desired to assure itself that Henry as F. H: McGRAW AND COMPANY 711 a foreman would not be persona non grata with the Union whose members would have to work under him. That such an interpretation is not entirely unreason- able isfto some extent at least reflected in Henry's own!testimony, that in request- ing clearance of Connolly he stated as one of his reasons a desire to avoid resent- ment from the men who might later be required ;to work under him as foreman. Although the case is close, I am unable to say on this record that enough has been shown to support a finding that Henry applied for,, and was denied, a non- supervisory job. Accordingly, I shall recommend dismissal of such allegations of the complaint as plead that the Respondent Company discriminated against Henry in violation of Section 8 (a) (1) and 8 (a) (3) of the Act and that the Respondent Unions attempted to cause and did cause such discrimination in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Such of the activities of the Respondents set forth in Section III, above, as 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 Having found that the Respondents , and each of them, have engaged in unfair labor practices, it will be recommended that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the dca'se,` I make the following : CONCLUSIONS OF LAW 1. International Union of Operating Engineers, A. F. L., and its Local 181, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By questioning applicants for employment in regard to their union mem- bership, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By continuing in existence, maintaining in effect, entering into, and en- forcing, on and after January 1, 1951, agreements, understandings, and prac- tices, conditioning the hire and tenure of employment upon membership and standing in the Respondent Unions in contravention of Section 8 (a) (3) of the Act, the Respondent Company discriminated in regard to the hire and tenure of employment and terms and conditions of employment of employees and appli- cants for employment, thereby encouraging membership in the Respondent Unions, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and by such conduct the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act. 4. By their participation along with the Respondent Company in continuing in existence, maintaining in effect, entering into, and enforcing, on and after January 1, 1951, the aforesaid agreements, understandings, and practices, the 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union attempted to cause and did cause the Respondent Company to discriminate against employees and applicants for employment in violation of Section 8 (a) (3) of the Act, and also restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and by such con- duct the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondents have not engaged in unfair labor practices, as alleged in the complaint, as a result of the failure or refusal of the Respondent Company to employ Albert G. Henry. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 interrogate our employees or applicants for employment concerning their union affiliations. WE WILL NOT require employees or applicants for employment to obtain clearance or job referrals from INTERNATIONAL UNION OF OPERATING ENGI- NEERS, A. F. L., or its LOCAL 181, or from any other labor organizati'Gn, as a condition of employment, except under a nondiscriminatory arrangeiiieht permitted by Section 8 (a) (3) of the Act. WE WILL NOT perform, enforce, or give effect to the closed-shop provisions of our contract with the International Union of Operating Engineers, dated July 29, 1948, and/or the preferential hiring provisions of our oral agreement or understanding with Local No. 181 of said International adopting the standard form of collective bargaining agreement of said Local, or enter into or enforce any extension, renewal, modification, or supplement thereof, or any superseding agreements with the said labor organizations containing union-security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named unions, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee or applicant for employment because of membership in or nonmem- bership in any such labor organization. F. H. MCGRAW AND COMPANY, Employer. Dated -------------------- By ----------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. HUNTSVILLE MANUFACTURING COMPANY 713 Appendix B To ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS , A. F: L., AND ITS LOCAL 181 AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOY- MENT WITFI F. H. MCGRAW AND COMPANY Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations. Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause F. H. MCGRAw AND COMPANY to require employees or applicants for employment to obtain clearance or job referrals from us, or either of us, as a condition of employment , except under a nondiscriminatory arrangement permitted by Section 8 (a) (3) of the Act. WE WILL NOT perform or give effect to the closed-shop provisions of the undersigned International's written collective bargaining agreement with said company, dated July 29, 1948, and/or the preferential hiring provisions of the undersigned Local's oral agreement or understanding with said com- pany adopting the standard form of collective bargaining agreement of said Local , or enter into, or enforce any extension , renewal, modification, or supplement thereof, or any superseding agreements with said company, containing union-security provisions , except as authorized by the proviso to„Seetion 8 (a) (3). WE WILL NOT cause or attempt to cause the said company to discriminate in any manner against its employees or applicants for employment in viola- tion of Section 8 (a) (3). WE WILL NOT in any like or related manner restrain or coerce employees of F. H. McGRAw AND COMPANY in the exercise of the rights guaranteed to them by Section 7 of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS , A. F. L., Labor Organization. Dated -------------------- By ---------------------------------------- (Title of Officer); LOCAL 181, INTERNATIONAL UNION OF OPERATING ENGINEERS , A. F. L., Labor Organization. Dated -------------------- By ---------------------------------------- ,(Title of Officer), This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. HUNTSVILLE MANUFACTURING COMPANY and TEXTILE WORKERS UNION OF AMERICA , CIO. Case No. 10-CA-1401. June 13, 1952 Decision and Order On March 24, 1952, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and 99 NLRB No. 113.