Consolidated Builders, Inc.

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONSOLIDATED BUILDERS, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F. OF L. and ENGINEERS LOCAL 701, AFFILIATED WITH INTERNATIONAL UNION OF OPERATING ENGINEERS , PARTY TO THE CONTRACT. Case No. 36-CA-104. June 926, 1952 Decision and Order On October 10, 1951, Trial Examiner Irving Rogosin issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, and recommending that the Respondent take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent, and Engineers Local 701, affiliated with International Union of Operat- ing Engineers, hereinafter called Operating Engineers, filed excep- tions to the Intermediate Report together with supporting briefs.' The Board has reviewed the rulings of the Trial Examiner and finds'that no prejildicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with our findings, con- clusions, and order herein set forth. 1. In agreement with the Trial Examiner, we find, contrary to the contentions of the Respondent and Operating Engineers, that the Respondent is, and at all times material here, has been engaged in commerce within the meaning of the Act, and that the assertion of jurisdiction by the Board will effectuate the purposes of the Act 2 x The request by Operating Engineers for oral argument Is hereby denied because the record and the exceptions and briefs, in our opinion , adequately present the Issues and the positions of the parties. 2 Federal Dairy Co. Inc., 91 NLRB 638; Hollow Tree Lumber Company, 91 NLRB 635; Engineers Limited Pipelsne.Company, 95 NLRB 176; Donovan, James, Wilmer & Becker, 93 NLRB 1325; N. L. It. B. v. Ozark Dam Constructors et at., 190 F. 2d 222; (C. A. 8), enfg. In respects material hereto 86 NLRB 520. Since the Issuance of the Intermediate Report in this case , the Court of Appeals for the Ninth Circuit in N. L. R. B. v. Guy F. Atkinson Co. and J. A. Jones Construction Co. etc., 195 F. 2d 141, denied enforcement of the Board's order because the unfair labor practices occurred before the announcement by the Board that it would no longer adhere to its former policy of declining to assert jurisdiction over employers In the construction industry. How- ever, the Instant case is distinguishable from the Atkinson case. On June 11, 1948, In Ozark Dam Constructors, 77 NLRB 1136, the Board asserted jurisdiction over operations similar to those involved here In the Atkinson case, the unfair labor practices occurred in February 1948-which was several months before the Board issued its decision in Ozark Dam Constructors . The unfair labor practices alleged In the instant case occurred during the period from April through August 1949, or sometime after the Board's assertion of jurisdiction in Ozark Dam Constructors. The court in its opinion In the Atkinson case referred to the Ozark case as "the first case" in which the Board assumed jurisdiction in the construction Industry. Under the circumstances , It seems clear that the reasons given by the court for denying enforcement. in the Atkinson case,are not applicable here 99 NLRB No. 135. CONSOLIDATED BUILDERS, INC. 973 2. The Trial Examiner found that the Respondent, in the adminis- tration and application of the agreement with the Operating Engi- neers, accorded that Union exclusive recognition at a time when it did not represent a majority of the employees in question in a repre- sentative complement. The facts in connection with the execution of the agreement, as found by the Trial Examiner, are as follows : - Early in 1949, the United States Army Corps of Engineers awarded a contract to the Respondent for the construction of the Detroit Dam and- appurtenant power generating facilities, . located- in the State of Oregon. On April 4, 1949, a conference was held between representa- tives of the Respondent and those of a number of constituent Inter- nationals and Locals of the AFL Building and Construction Trades Department. As a result of this conference a collective bargaining agreement, dated April 6, 1949, was executed between the Respondent and the AFL Building and Construction Trades Department and a. number of constituent organizations, including International Union of Operating Engineers and its Engineers Local No. 701 at Portland, Oregon. The agreement was made effective upon its, execution and was to remain in force until the completion of the project. Attached to this agreement, and made part of it, were schedules showing classi- fications and wage scales for various categories of employees over which the several unions claimed jurisdiction, including one with respect to Operating Engineers which, among many classifications, had the classifications of "H. D. Mechanic or Welder" and "H. D. Mechanic's Helper" involved in this proceeding. In addition to employees represented by Operating Engineers, this agreement cov- ered carpenters, common laborers, teamsters, plasterers, painters, sheet metal workers, blacksmiths, steel sharpeners, hammer operators, and helpers. The complaint alleged, inter alia, that by the agreement of April 6, 1949, the Respondent recognized Operating Engineers as exclusive representative of all its employees "in the trade of machinist or in related work" at the project at a time when it did not have in its employ a representative complement of employees in the classifica- tions set forth in the agreement. The Respondent and Operating Engineers deny that the agreement either as written or in its administration accorded exclusive recogni- tion to Operating Engineers. The Trial Examiner found that during the precontract negotiations, Morton, industrial relations counsel for the Respondent, proposed a collective bargaining agreement with the labor organizations repre- sented at the conference under which they would furnish the Respond- ent with workmen for the project, but stated that, although the 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent would bargain with these Unions on behalf of workmen whom they furnished, it would not accord those unions exclusive recognition, it would not limit itself exclusively to those unions as the sole source of labor supply, and it would not grant any form of union security, except under existing law. The Trial Examiner found that the unions "apparently acceded to these terms," and that a collective bargaining agreement dated April 6, 1949, was then executed which did not contain an exclusive recognition clause. We are in full agree- ment with these findings which are adequately supported by the record. However, notwithstanding the above findings and the fact that an exclusive recognition clause was not incorporated in the agreement, the Trial Examiner concluded that the Respondent had recognized Operating Engineers as exclusive representative for the classifica- tions involved in this proceeding. He based this conclusion, in part, on the language of Article 3 (coverage) of the agreement which referred to "workmen in the classifications listed in the hereto ap- pended wage schedules, employed on all construction work of the contractor in connection with the Detroit Dam project." Because the parties used the term "workmen in the classifications listed,'" the Trial Examiner inferred, despite the contrary evidence which he credited, that the parties regarded the contract as applicable to all employees in the specified classifications, including those whom Op- erating Engineers claimed to represent: We do not agree. There is nothing in the language of Article 3 which can reasonably be equated with a provision for exclusive recognition. Nor does the record disclose any affirmative evidence that the Respondent, in the administration of the agreement, recognized or bargained with Op- erating Engineers for all employees .3 The Trial Examiner, in this connection, found that the record contains no affirmative evidence as to whether in practice Operating Engineers confined its activities to matters pertaining to its members only .4 In our opinion, a negative finding of this kind does not warrant an inference that Operating Engineers extended its bargaining activities to all employees. Apart from these considerations, the Trial Examiner found that, in any event, the evidence as to the job applications, which he found supported the Section 8 (a) (3) allegations of the complaint, was sufficient to support a finding that the contract required exclusive recognition, despite the absence of language to that effect. We do not believe that the evidence concerning discrimination as to some job applicants, standing alone, warrants a finding of a grant of exclusive $ International Paper Company Tonawanda Mill, 97 NLRB 764 , is therefore distinguish- able. In that case that Board's finding of exclusive recognition was based not only on a similar "coverage clause in the contract but also upon the practice of the parties, e. g., the Union's claim to representation of all employees , the recognition accorded by the Employer, and bargaining with the Union on such basis " Cf. Standard Oil Company of California, 62 NLRB 449. CONSOLIDATED BUILDERS, INC. 975 recognition. For, as the Trial Examiner himself found, the record does not establish the existence of a practice or policy of hiring ex- clusively through Operating Engineers, or of conditioning employ- ment upon membership in, or clearance from, the Operating Engineers. Under all the circumstances, we find that the General Counsel has failed to establish by a preponderance of the evidence that the Re- spondent accorded Operating Engineers exclusive recognition. As it is not a violation of the Act for an employer to enter into an agree- ment with a union at a time when there is no representative comple- ment in its employ unless the employer extends exclusive recognition to that union, it follows that the Respondent did not independently violate Section 8 (a) (1) of the Act by entering into the April 6 agreement with Operating Engineers .5 As we have found that the Respondent did not violate Section 8 (a) (1) of the Act in the respects already discussed, it is unneces- sary for us to consider the- contentions of the Respondent and Operat- ing Engineers that the scope of the bargaining unit was not adequately defined, that the Respondent's employee complement was in fact repre- sentative, or that the other Unions that were signatories to the agree- ment were indispensable parties to the proceeding, and thus entitled to intervention.6 3. Like the Trial Examiner, we find that the Respondent discrim- inated against Clyde V. Anderson, Nouns W. Tucker, and Axel B. Sundberg in violation of Section 8 (a) (3) and (1) of the Act. We predicate this finding on the specific facts, recited in detail in the Intermediate Report, surrounding the applications of these individ- uals for employment at the project: Clyde V. Anderson, a marine machinist, testified that on August 15, 1949, he inquired of Foreman Winchell' if he "had anything in heavy duty, light duty or mechanical work of any kind." According to the Respondent's own contention, it was recruiting, during that period, employees in the classification of heavy duty mechanics. The Trial Examiner found, and in our opinion the record adequately supports this finding, that a comparison of the experience require- ments of a marine machinist with those of a heavy duty mechanic indicated that Anderson possessed skills which the Respondent could a In The Hoover Company, 90 NLRB 1614, 1618, the Board pointed out that an employer may grant recognition to each of two rival unions on a members -only basis ; a fortiori, therefore, an employer may grant recognition on a nonexclusive basis to a minority union where, as here, there was no rival union claim No exceptions were taken to the Trial Examiner's refusal to find that the facts alleged in the complaint as an independent violation of Section 8 (a) (1) also constituted a viola- tion of Section 8 (a) (2). Moreover, in view of our dismissal of the Section 8 (a) (1) allegation , the latter allegation must also be dismissed. 7 In agreement with the Trial Examiner , we find that at all times material here, winchell was a supervisor within the meaning of the Act. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have utilized then or in the immediate future. In this context, we- regard Winchell's statement to Clyde V. Anderson that "You will have to belong to 701 to come up here" as sufficient to support a finding of discrimination as to him. Nonus W. Tucker, a machinist, testified that on August 29, 1949,. Superintendent Mikkleson told him that he had a job for him, that he intended to requisition two men, and that Tucker could come out with them. However, Mikkleson advised him at that time that he would have to join Operating Engineers. Tucker testified that on the following day, Mikkleson told him that the two men had been on order, that the order had been filled, and that he had no further need for men at that time. Tucker also testified that Personnel Director- Murray, in answer to his question whether there was some other way he could obtain employment without going through Operating Engi- neers, said he knew of none. The Trial Examiner credited this testi- mony, and found that, when Mikkleson directed Tucker to the Operat- ing Engineers, Mikkleson either required,a machinist of Tucker's experience or believed that Tucker was qualified to perform the work then available. We perceive no reason for disturbing the Trial Examiner's credi- bility resolutions or findings of fact. Accordingly, we hereby adopt them. In this context, we find that Mikkleson's statement to Tucker that he would have to join the Operating Engineers, and Murray's statement that there was no other way to obtain employment, suf- ficient to support the finding of discrimination as to him. Axel Sunndberg, a marine machinist, testified that about the middle of August 1949, when applying for employment at the project, Fore- man Winchell told him that the Respondent was going to start a con- veyor system down the mountainside and inquired if Sundberg would be "all right for that kind of work." When Sundberg said that he would, Winchell told him that he would have to apply for member- ship in the Operating Engineers. Winchell did not appear or testify at the hearing. On these facts, we adopt the Trial Examiner's find- ing of discrimination as to him. Although we are satisfied that the General Counsel sustained the burden of proof as to Clyde V. Anderson, Tucker, and Sundberg, we predicate our findings as to them, as indicated above, on the specific facts mentioned here and detailed further in the Intermediate Report. Thus, we have found, in agreement with the Trial Examiner, that an application for work was made in each case, that jobs for which the applicant was qualified were available at the time of such application, and that in each case, employment was conditioned upon application for, membership in the Operating Engineers.. In the circumstances, the imposition of such a condition clearly constituted a discrimination with respect to hire and tenure of employment to encourage member- CONSOLIDATED BUILDERS, INC. 977 ship in the Operating Engineers and to discourage membership in any other labor organization, in violation of Section 8 (a) (3) and (1) of the 'Ad.- 4. We do not agree with the Trial Examiner that the evidence war- rants a finding of distrimination with respect to the hire and tenure ,of employment of Harry W. Keller, Harold L. Thayer, and Harold Anderson. As the Trial Examiner found, these applicants were also "advised to get straightened up with the Union" and that they "would have to go through the Engineers." However, the record shows, and the Trial Examiner made no contrary finding, that no jobs for which the applicants were qualified were available at the time of their applica- tion.9 In this posture of the case, a finding of discrimination must be bottomed on an inference that it would have been futile to reapply when jobs became available because the same discriminatory condi- tion would continue to be attached. In cases where the Board has found a discriminatory hiring policy or practice to be in existence and that such policy has been cummunicated to applicants for employ- ment, albeit at times when no jobs for them were available, the Board has held that under those circumstances an inference and finding was warranted that further application would have been futile because it was clear from the existence of the discriminatory hiring policy that the same discriminatory condition would be attached whenever jobs became available.1o In such circumstances the Board has concluded that the applicants are not required to continue making the useless ges- ture of continuous reapplication in order to establish the Employer's responsibility for the discrimination practiced against them. However, we do not have that sort of record before us here. On the contrary, here the Trial Examiner, properly in our opinion, concluded that the evidence failed to establish a discriminatory hiring policy. Thus, the record shows, as the Trial Examiner has found, a As we do not agree with the Trial Examiner that the evidence in this case established that the Respondent had in fact accepted the determination of Operating Engineers as to who should be permitted to work, we do not adopt his finding that the Respondent's conduct was violative of the Act for that reason. The cases cited in the Intermediate Report in support of the Trial Examiner's rationale involve either a discriminatory suspension caused by a union (Engineers Limited Pipeline Company, 95 NLRB 176; American Pipe and Steel Corporation, 93 NLRB 54), or a discriminatory reduction in seniority for delinquency in dues payments, also caused by a union (International Brotherhood of Teamsters, etc., 94 NLRB 1494). 9 Keller was applying for work involving the installation of machinery for the operation of the dam. The uncontradicted evidence, as found by the Trial Examiner, shows that at the time of the hearing, more than 11/2 years later, work requiring the installation of machinery for the operation of the dam had not yet begun. Thayer was seeking work as a machinist and Harold Anderson, as a "combination welder " The record shows that no machine shop work of the kind Thayer requested or combination welding, in the case of Harold Anderson, was available at that time or for sometime thereafter. 10 Daniel Hamm Drayage Co., 84 NLRB 458, enfd. 185 F 2d 1020 (C. A. 5), Arthur G. McKee & 00, 94 NLRB 399, enfd 196 F 2d 636 (C. A 5) ; Utah Construction Co , 95 NLRB 196, General Electric Co., 94 NLRB 1260; J. R. Cantrall Company, 96 NLRB 1925; Swiner- ton at Walberg Co., 94 NLRB 1079. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent's industrial relations counsel, Morton, at the out- set of the contract negotiations in April 1949, informed the union representatives that the Respondent would not limit itself exclusively to those unions as the sole source of labor supply; that during the progress of the work, the Respondent hired employees in the classi- fications in question without requiring membership in or clearance from the Operating Engineers; that at times the Respondent requisi- tioned men from the Operating Engineers who were not members of that Union; 1 and that employees have been recruited from among former employees at similar projects which were nearing completion, and by utilizing the facilities of manufacturers' representatives as well as the facilities of various unions, including the Operating Engineers 12 On this state of the record, it becomes speculative whether, if these applicants had reapplied at a time when jobs were available, they would have been hired without a requirement of mem- bership or clearance from the Operating Engineers, as in fact others were, or whether the discriminatory hiring requirements would have been attached as in the case of those applicants with respect to whom we have found a violation of Section 8 (a) (3). Considering the record as a whole, we are not persuaded that the evidence preponderates in favor of a finding that, if the applicants had reapplied at a time when jobs for them were available, the Re- spondent would have conditioned their employment upon member- ship in or clearance from the Operating Engineers, so as to make their reapplication a futile gesture. We therefore conclude and find that while the statements made to these applicants by the Respond- ent's supervisors constituted violations of Section 8 (a) (1), the General Counsel has not sustained the burden of proving a violation of Section 8 (a) (3) with respect to Keller, Thayer, and Harold Anderson. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Consolidated Builders, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, A. F. of L., or in any other labor organization of employees or applicants for employment, or encouraging membership in Engi- v The General Counsel conceded , and the Trial Examiner found, that the hiring pro- visions in the contract were lawful. is On one occasion when Operating Engineers' representative requested the Respondent to notify that Union whenever it hired any of its members, Personnel Director Murray re- minded him that under the agreement the Respondent was at liberty to employ labor from any source it wished , and declined to comply with the request. CONSOLIDATED BUILDERS, INC. 979 neers Local 701, affiliated with International Union of Operating Engineers, A. F. of L., or in any other labor organization of em- ployees or applicants for employment, by refusing to hire and em- ploy properly qualified applicants because of their membership or nonmembership in those or any other labor organizations, or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment, except insofar as such activity may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, to the extent and upon the terms authorized in Section 8 (a) (3) of the Act. (b) Informing applicants for employment, in the classifications herein involved, that it will require as a condition of employment membership in or clearance from Engineers Local 701, affiliated with International Union of Operating Engineers, A. F. L., clearance being conditioned upon membership in said Union. (c) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the right to self-organization, to form labor organizations , to join or assist International Association of Machinists or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to re- frain from any or all such activities, except to the extent that such right may be affected by a valid agreement requiring membership in a labor organization as a condition of employment, in conformity with 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) Offer Clyde V. Anderson, Nonus W. Tucker, and Axel B. Sundberg immediate employment in positions substantially equivalent to those discriminatorily denied them on the date of their several ap- plications at the Detroit Dam Project, without prejudice to their seniority or other rights and privileges. (b) Make whole the said Clyde V. Anderson, Nonus W. Tucker, and Axel B. Sundberg for any loss of pay they may have suffered, as a result of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request make available to the Board or its agents for examination and copying all payroll records, social security pay- ment records, time cards, personnel records, and reports, and all other records necessary for analysis of the amounts of back pay due under the terms of this Order. (d) Post at the Detroit Dam Project and at its offices at Mill City, Oregon, copies of the notice attached hereto and marked "Appendix 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A." 13 Copies of such notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees and applications for employment are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby. is,,-dis- missed insofar as it alleges discrimination with respect to Henry W. Keller, Harold L. Thayer, and Harold Anderson; violations of Sec- tion 8 (a) (1) arising out of the execution of the April 6, 1949, agree- ment; and violations of Section 8 (a) (2) of the Act. MEMBER PETERSON, dissenting in part : I disagree with the majority's finding that the Respondent did not discriminate with respect to the hire and tenure of employment of Keller, Thayer, and Harold Anderson. I would approve the Trial Examiner's finding of violation of Section 8 (a) (3) and (1) as to each of them and order appropriate remedial action. The evidence, in my opinion, establishes that each of them would have been employed at the time he applied or when jobs for which he was qualified became available but for his membership in the I. A. M. and lack of member- ship in or clearance from the Operating Engineers. Therefore, it is unnecessary to find; as does the majority, that absent a discrimina- tory hiring policy an inference that further application would have been futile is unwarranted 14 My agreement with the majority that no finding of a discrimina- tory hiring policy should be made rests solely on the fact that no exceptions were taken to the Trial Examiner's finding that such a policy was not established by the record. In this posture of the case, and in view of the Board's general policy not to disturb findings not excepted to, I agree with my colleagues not to hold that the Respond- ent independently violated Section 8 (a) (3) and (1) by applying a discriminatory hiring policy. 13 In the event that this Order is enforced by a decree of the 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." 14 In short, the majority seems to be holding that an applicant rejected in clear terms by a responsible representative of the employer on a ground not sanctioned by the Act, must nevertheless continue to reapply in order for the Board to find the refusal to employ violative of the Act unless and until a job is available if a discriminatory hiring policy is not established This seems to me an unrealistic position, and one not compelled by any- thing in the Act. CONSOLIDATED BUILDERS, INC. 981 However, I am satisfied that the record as a whole establishes the application of a discriminatory hiring policy for the recruitment of workers in the job classifications over which the Operating Engineers claimed jurisdiction; and that this hiring policy was in fact applied to all six individuals named in the 8 (a) (3) allegations of the com- plaint. Although I agree that the express terms of the contract in question do not obligate the Respondent to employ as workmen in the classi- fications here involved, only members of the Operating Engineers,! where available, or-individuals cleared by the Union, I am convinced that a practice to hire in accord with such conditions in fact existed: I find it difficult to believe that three different responsible supervisory agents on six separate occasions would have uniformly advised appli: cants known to be nonmembers of the Union that they would not be, hired without union clearance, unless the Respondent in fact sanctioned such conduct. This persuasive evidence of a discriminatory hiring policy is not rebutted, in my view, by the Respondent's showing, largely of a conclusionary and general nature, that it utilized sources other than the Union in obtaining workers. Particularly is this so since the express terms of the contract obligate the Respondent to hire only through the Union, 15 recruitment from other sources was only 'occa- sional, and the Respondent admitted that it was economically necessary; for it to deal with the Union in order to assure itself of an adequate; supply of labor. I would find, therefore, but for the absence of exceptions by the General Counsel, that the Respondent's hiring practices constitute independent evidence of the Respondent's violation of Section 8 (a) (3) and (1) of the Act, and that by the application of this discriminatory hiring policy to each of the individual complainants at the time they applied for work, the Respondent's discrimination against "each, within the meaning of Section 8 (a) (3), must also be found, without regard to the availability of jobs at the time they applied'e , In my opinion, it is unnecessary to decide whether the April 6 contract by its terms or as administered granted "members only" an 10 Article 4 (b) of the contract provides that the Respondent "will notify the Union of its need for workmen" and the Union "will furnish an adequate supply of workmen in the classifications . . . when and as requested . . . if such workmen are available." 'The facts , respecting the administration of the contract indicate that the Union regarded 1tsprovisions as precluding the hiring even of union members from other sources, when the Union had workmen available. As was admitted , the Union protested the Respondent's hiring of some of ` its members from other jobs without notification to it, on the ground that such action upset the Union 's intraorganization "rotation -of-jobs" referral plan. 16 Daniel Hamm Drayage Co., Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 (C. A. 5) ; Utah Construction Co., 95 NLRB 196 ; J. R. Cantrall Co., 96 NLRB 786. As these cases indicate, the availability of work is pertinent only to the question of determining the amount of, back pay which may be due under the normal remedial order 215233-53--63 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive recognition. While as a practical matter it is difficult to envisage what, if any, greater voice the Union would have had in the determination of terms and conditions of employment if the contract were interpreted as according exclusive recognition, the discriminatory hiring practice disclosed by the evidence violated the Act whether the contract is read as extending exclusive or less than exclusive recognition." Since I would find that the Respondent, in applying the contract to the hiring of employees, unlawfully discriminated against non- members of the Union and particularly against members of the I. A. M., thereby indicating to its employees and applicants for em- ployment that the Union enjoyed the position of statutory repre- sentatives, I would order the Respondent to refrain from extending exclusive, recognition to the Union until the latter is certified by the Board and to post appropriate notices to that effect. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and, in order to effectuate the policies of the National Labor Relationg Act,'we hereby notify our employees that: WE WILL NOT discourage membership in INTERNATIONAL Asso- CiaTION'Or MACRINis'rs, A. F. or L., or encourage membership in ENGINEERS LOCAL 701, affiliated with INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. OF L., or in any other labor orgam- zation, by refusing to employ properly qualified applicants, or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employment, except insofar as such activity may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment, as authorized in Section 8' (a) (3) of the Act. WE WILL NOT infoim applicants for employment that we will require as a condition of employment membership in or clearance from ENGINEERS LOCAL 701, Affiliated with INTERNATIONAL UN- ION OF OPERATING ENGINEERS, A. F. of L., clearance being condi- tioned upon membership in said union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exer- 17 To hold that it is an exclusive contract would necessitate inquiry into the Union's majority status when made and a determination of the appropriate unit , issues that raise difficult procedural questions in view of the multiunion nature of the contract , and the nonjoinder of the other unions parties thereto. CONSOLIDATED BUILDERS, INC. 983 cise of their right to self-organization, to form labor organiza- tions, to join or aSSiSt INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, A. F. or L., or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to. refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the persons named below immediate employ- ment in positions substantially equivalent to those discrimina- torily denied them on the dates of their several applications for employment at the Detroit Dam Project, without prejudice to their seniority or other rights and privileges. We will make them whole for any loss of pay they mave have suffered as the result of the discrimination, against them. Clyde V. Anderson Axel B. Sundberg Nonus W. Tucker All our employees are free to become or 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 employ- ment or any term or condition of employment of any employee or applicant for employment because.of membership or nonmembership in any such labor organization. CONSOLIDATED BUILDERS, INC. Employer. By --------------- --------- - (Represehtalfive ) ( Title) ;Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered ,by any other material. Intermediate Report and Recommended Order STATEMENT OF THE 'CASE This complaint , based upon a third amended charge , filed August 11, 1950, by International Association of Machinists (A. F. of L.), as amended , herein called the IAM ; was issued on (the same date by the General Counsel of the National Labor,Relations Board, herein called the GeneralTounsel ,' and the Board , respec- tively, against Consolidated 'Builders, Inc., herein catlied the Respondent. Copies of the original charge, dated September 2, 1949, and the succeeding charges were " Unless otherwise indicated or required by the context, all references, to, the General Counsel herein are to his representative at the hearing. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duly served upon the Respondent ; copies of the third amended charge, the com- plaint, and notice of hearing, upon the Respondent , the Party to the Contract, and the IAM. As amended at the hearing, over the objection of the Respondent and the Party to the Contract, the complaint alleges in substance that the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2 ), and (3 ), and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, as amended ( 61 Stat. 136), herein called the Act, by : (1) executing a collective bargaining agreement, under date of April 6, 1949, with Engineers Local 701 , affiliated with International Union of Oper- ating Engineers, herein called the Operating Engineers , Local 701, or the Union, recognizing said Union as exclusive representative of all Respondent's employees "in the trade of machinist and in related work" at the Detroit Dam Project, notwithstanding that the Respondent did not then have in its employ a representative complement of employees in classifications set forth in said agreement ; (2) giving effect to said agreement so as to require applicants for employ- ment as machinists and in related work , to become members of or procure permits from Local 701, and granting preference in employment to members of said Local ; (3) notifying applicants for employment that they would be requiril--to become members of or procure permits from labor organizations who were parties to the above-mentioned agreement ; (4) discriminating against 6 named applicants for employmen£, on various specified. dates, by refusing them employment at said Project because they were not members of or had not been - granted permits by Local 701, to encourage membership in said Union ; (5) supporting and assisting said Local 701 by the foregoing conduct; and,' (6) instructing job applicants to join Local 701 , informing them that jobs in the classification of machinists were available only to members of said Local, and constituting said Local as its employment agency "without limi- tation on the power and opportunity of said Local to discriminate in favor of its members in dispatching applicants for employment." The Respondent, in its answer filed October 16, 1950, admits the allegatfn„ a;as to its corporate entity, the general nature of the undertaking involved , the ex- penditure of in excess of $500,000 annually for materials and supplies on the project, and the execution of a collective bargaining agreement , on April 6, 1949, with the Building and Construction Trades Department of the American Fed- eration of Labor and affiliated unions, including the Operating Engineers. It generally denies, however, the remaining jurisdictional and substantive allega- tions of the complaint. In its answer, filed October 13, 1950, except for admitting the corporate entity of the Respondent , and the status of the unions involved as labor organizations, Local 701 similarly denies the remaining allegations of the complaint. Pursuant to notice, a hearing was held at Portland, Oregon, on various dates between March 19, 1951 , and May 19, 1951, both inclusive , before the under- signed duly designated Trial Examiner . The General Counsel and the Respondent were represented by counsel ; the Operating Engineers , by its counsel and other 2As particularized by the General Counsel, In response to the Respondent's motion, granted in part. CONSOLIDATED BUILDERS, INC. 985 representatives ; and the IAM, by a Grand Lodge and other representatives. All parties participated in the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence rele- vant and material to the issues. Although afforded an opportunity to argue orally on the record at the close of the evidence, and to file briefs and pro- posed findings of fact and conclusions of law, all parties declined to do so. At the outset of the hearing, the Respondent objected to the receipt in evi- dence of all the amended charges, and to so much of the complaint as related thereto, on the ground that they alleged matters occurring more than 6 months prior to the filing of said amended charges. The objection, in which the Operating Engineers joined, was overruled. Motions to strike, and to dismiss the allega- tions of the complaint based on said amended charges, on the same ground, were denied. Objection to the amendment to the complaint, to allege viola- tion of Section 8 (a) (2), was overruled, and motions to strike and to dismiss those allegations, renewed during, and before the close of the hearing, were similarly denied. Cathay Lumber Co., 86 NLRB 157, enfd. 185 F. 2'd 1021, (C. A. 5) ; enforcement decree vacated on other grounds, 189 F. 2d 428 (C. A. 5) ;I see also, N. L. R. B. v. Wester Boot & Shoe Co., 190 F. 2d 12, (C. 5), rehearing denied, 190 F. 2d 556. With the introduction of the formal papers by the General Counsel, the Operating Engineers moved to amend its answer to allege by way of affirmative defense that (1) at the time of the execution of the collective bargaining agreement involved, and at all times material, "a large majority of the em- ployees of Respondent engaged in the work claimed by Local 701 were and now are members" of said Union; (2) said agreement, executed pursuant to long established custom and practice in the building and construction in- dustry, necessitating the execution of such agreements prior to or shortly after the beginning of construction, was entered into in reliance on the exist- ing policy of the Board to decline to entertain petitions under Section 9 (c) and Section 8 (a) (3) of the Act, for certification of bargaining representa- tives, and authorization of union-shop contracts in the industry. Further an- swering, said Union alleged that it had on the same day filed a petition under Section 9 (c) and had refrained from filing a union authorization petition, under Section 8 (a) (3) only because of the Board's existing policy against conducting such elections in the building and construction industry. By pro- ceeding with the complaint, the Union asserted the Board was discriminating against it and depriving it of property rights without due process of law. The answer also alleged that the Act, as applied by the Board in this regard, violated the fifth amendment to the Constitution, and prayed that the complaint be dismissed, or the proceedings suspended, until the Board processed said petitions. As a separate and affirmative defense, the Operating Engineers alleged that the controversy arose out of a jurisdictional dispute between the IAM and the Operating Engineers over which of those labor organizations was entitled to perform the work of heavy duty and shop mechanics ; that when the IAM re- affiliated with the A. F. of L., it agreed that any jurisdictional dispute between those labor organizations would be referred to the presidents of the respective international unions involved for settlement, and for further proceedings, in the event of failure to resolve such dispute ; that, although the Operating Engineers has at all times been willing to submit to this method of determination of the dispute, the IAM has failed and refused to do so, or otherwise to exhaust the internal procedures within the A. F. of L. The Respondent, joining in the motion, was permitted to amend its answer accordingly. The General 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel thereupon moved to strike from said amended answers so much of the affirmative defenses as related to the alleged jurisdictional dispute between the Operating Engineers and the IAM. on the ground that the issue was not liti- gable within the framework of the complaint, and that the appropriate method for determining the issue was by a proceeding under Section 10 (k) of the Act. The motion was granted. Repeatedly during the course of the hearing, at the close of the General Counsel's case-in-chief and the close of the evidence, the Respondent and the Operating Engineers moved to (1) strike certain allegations of the complaint; (2) strike testimony of various witnesses; (3) dismiss the complaint or, in the alternative, suspend the hearing, for nonjoinder of necessary parties: (4) dismiss the complaint or, in the alternative, suspend the proceedings pending disposition of the petition for representation filed by the Operating Engineers during the hearing;' and (5) dismiss the complaint on the ground of vagueness, uncertainty, indefiniteness, and ambiguity in the term "trade of machinist and in related work," as used in the complaint. as well as lack of jurisdiction and failure of proof. All said motions were renewed or regarded as having been renewed before the close of the hearing. The motions were generally denied. Any motions upon which ruling was reserved at the hearing, not otherwise treated, are disposed of by the findings and conclusions hereinafter made. The General Counsel's motion at the close of the hearing to conform the pleadings to the proof with respect to formal matters and minor variances, not affecting the substantive issues, was allowed over the objection of the Respondent and the Operating Engineers. On May 15, 1951, while the hearing was in progress, a motion to intervene was filed and argued by counsel appearing specially on behalf of Oregon State District Council of Laborers (formerly Columbia River District Council of Laborers), a signatory to the collective bargaining agreement, affiliated with the International Hod Carriers, Building and General Laborers Union, affiliated with the American Federation of Labor After oral argument, in which all parties participated, the motion was denied on the ground that no sufficient showing of interest had been made by that labor organization, inasmuch as the complaint, as amended, and the General Counsel, in his statement for the record, did not seek to impair the rights of that organization under the contract, and sought no remedial order against that labor organization 4 Upon the entire record in the case, and upon his observation of the witnesses,, the undersigned makes the following : s Such a petition, filed during the first day of the hearing, March 19, 1951, with the officer-in-charge of the Subregional Office, at Portland, (Case No. 36-RC-605), was dis- missed by said officer, on April 4, 1951, as untimely. Although advised of its right of appeal from said dismissal, the Operating Engineers took no such appeal. It renewed its motion, however, to dismiss the complaint, or, in the alternative, to suspend the proceed- ings. until afforded an opportunity to file a new representation petition The motion was denied. 4 During the course of the hearing, Mr. Harry F. Morton. of counsel for the Respondent, announced that he had received a telegram which he read into the record, from Mr. Dave Beck, executive vice president of the International Brotherhood of Teamsters, advising of that union's Interest, as a party to the contract, in the collective bargaining agreement involved herein, and requesting that the proceedings be stayed until it, its affiliates, and all other parties to the contract were "given notice and an opportunity to be heard in order to defend our rights under said contract." Such a telegram, as well as a similar one from Mr Richard J. Gray, president of the Building and Construction Trades Department of the American Federation of Labor, addressed to the undersigned, was received during the hearing and also read into the record. No formal intervention was sought, however, by these or any other labol organizations, named as parties in the collective bargaining agree- ment, except as already stated. CONSOLIDATED BUILDERS, INC. FINDINGS OF FACT 1. THE BUSINESS OF TIIE RESPONDENT '987 Consolidated Builders , Inc,' is a NeN ada corporation authorized to engage in construction work in the State of Oregon. At all times material herein, it has been engaged in the performance of a contract with the Corps of Engineers of the United States Army for the construction of a dam and appurtenant power generating facilities on the North Santiam River, approximately 12 miles east of the town of Mill City, near Detroit, Oregon, and known as the Detroit Dam Project. By the terms of this construction contract, the Respondent has under- taken to construct a concrete, gravity dam, complete with outlet gates and valves, penstocks, trashracks, stilling basin, control house, and all other appurtenant structures. The function of the dam is to control the waters of the North San- tiam River, a tributary of the Willamette and Columbia Rivers, which are plied by waterborne carriers operating in interstate commerce, and to generate hydro- electric power. Authorization for the construction of this project was granted pursuant to Title II of an act of Congress, generally known as the "Flood Control Act, of 1948," approved June 30, 1948, amending the so-called Flood Control Act of 1936, as amended by an act approved June 28, 1938 e Title II, Section 203 of the 1948 act provides: WILLAMETTE RIVER BASIN The general comprehensive plan for flood control, navigation, and other purposes approved by the Flood Control Act of June 28, 1948, is hereby modi- fied to provide for the installation of hydroelectric power generating facili- ties, including the construction of a reregulating dam, at Detroit Reservoir on the North Santiam River in accordance with plans on file in the office of the Chief of Engineers. The construction of the Detroit Dam Project was undertaken, pursuant to a prime contract, dated March 7, 1949, between the Respondent and the Corps of Army Engineers, as amended by a series of supplemental agreements referred to as change orders, at an original contract price of in excess of $28,000,000. Under so-called change order No 9, the Respondent has been authorized to construct the powerhouse substructure and its appurtenances at a contract price in excess of $674,000. At the time of the hearing, the substructure, constituting the foundation for the powerhouse plant, had been substantially completed, but no bids had yet been invited for construction of the powerhouse superstructure. It is estimated that it will require 2 years to complete the entire project. According to tabulations furnished by the Respondent, the total estimated cost of materials and supplies, exclusive of plant and equipment costs, is in excess of $8,000,000. of which more than $5,000,000 represents the estimated cost of permanent materials, and more than $2,000,000 represents the estimated cost of supplies and temporary materials. The estimated cost of supplies and materials for the powerhouse substructure, under changeorder No. 9, exclu- sive of plant and equipment costs, exceeds $175,000, of which nearly $100,000 represents the estimated cost of permanent materials, and in excess of $75,000, the estimated cost of supplies. i " A Henry J. Kaiser company enterprise , according to Industrial Relations Counsel Morton. O Public Law 858, 80th Congress , Chapter 771, 2d Session , H R 6419, an act authoriz- ing the construction, repair, and preservation of certain public works on rivers and harbors for navigation , flood control, and for other purposes 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the period April 1949, to March 1951, inclusive, the Respondent pur- chased equipment for use in connection with the project, aggregating in excess of $2,000,000, of which an average of nearly 35 percent was purchased from points outside the State, and an additional average of about 62 percent, pur- chased within the State, originated from points outside. During the correspond- ing period, the Respondent purchased materials and supplies, allocated to in- ventory accounts, as distinguished from equipment accounts, aggregating in excess of $4,000,000, of which an average of more than 30 percent was purchased from points outside the State, and an average of more than 45 percent, pur- chased within the State, originated from points outside.' ' Despite the foregoing, and other evidence in the record bearing on the question of commerce, the Respondent and the Operating Engineers deny that the Re- spondent is engaged in commerce within the meaning of the Act. The Re- spondent, professing to be unaware of the ultimate purposes for which the dam is to be utilized, maintains that the construction of the dam is an entirely local operation. Reference to the enabling Act, mentioned earlier, however, makes it abundantly clear that the construction of the dam is an integral part of a "comprehensive plan for flood control, navigation, and other purposes," and "the installation of hydroelectric power generating facilities." It may be rea- sonably inferred that the electrical power generated by these facilities will ulti- mately be utilized by public utilities and industrial consumers who are them- selves engaged in interstate commerce within the meaning of the Act. In addi- tion, the evidence discloses that the operation of the dam will directly affect the flow and level of the waters of the Willamette River, plied by seagoing ves- sels, which dock at Portland, and other ports in the State of Oregon and Wash- ington. River vessels, too, plying between ports on both sides of the Columbia River, whose confluence with the Willamette River is about 5 miles from Portland, load or deliver cargoes for reloading on seagoing vessels. Apart from these and other considerations disclosed by the record, the evi- dence establishes that the direct inflow of materials and equipment during the period involved exceeded $500,000, and this factor alone would warrant the assertion of jurisdiction by the Board.' Further basis for asserting jurisdiction, however, exists on additional grounds. First, during the period in question, the Respondent furnished services valued at far in excess of $50,000 per annum, necessary to the operation of an enterprise which will function as an instru- mentality and channel of interstate and foreign commerce! Second, the Re- spondent has furnished, and is furnishing services valued at in/excess of $50,000, necessary to the operation of a public utility," and third, it may reasonably be inferred from the entire record that the power to be generated is sufficiently vital to the national defense effort to warrant the exercise of the Board's dis- cretion to assert the jurisdiction conferred on it by the Act n Manifestly, interruption or cessation of the construction project here in- volved, resulting from industrial strife at the Respondent's operation, would result in obstruction to commerce and the free flow of commerce. The under- signed, therefore, finds, contrary to the contentions of the Respondent and the Operating Engineers, that the Respondent is, and has been, at all times material 7 In all instances , percentages varied, depending on the Items involved, from 5 to 100 percent. 8 Federal Dairy Co., Inc., 91 NLRB 638. ° Hollow Tree Lumber Company, 91 NLRB 635 ; Engineers Limited Pipeline Company, 95 NLRB 176. 10 Donovan, Jame8, Wismer, & Becker, 93 NLRB 1562. 11 See Donovan, James, Wismer & Becker, supra. CONSOLIDATED BUILDERS, INC. 989 herein, engaged in commerce within the meaning of the Act, and that the asser- tion of jurisdiction by the Board will effectuate the purposes of the Act.' II. THE ORGANIZATIONS INVOLVED International Association of Machinists, now affiliated with the American Fed- eration of Labor, and Engineers Local 701, affiliated with International Union of Operating Engineers, affiliated with the American Federation of Labor, are all labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Events culminating in the execution of the collective bargaining agreement On January 4, 1949, the Corps of Engineers, U. S. Army, issued an invita- tion for bids for the construction of the Detroit Dam and appurtenant works on the North Santiam River, Oregon, as part of the Willamette River Basin Project, authorized by the Flood Control Act of 1948, cited above. As usual the invi- tation was accompanied by specifications, supplemented here, by four addenda, dated February 1, 11, 16, and 21, 1949, respectively, requiring submission of sealed bids by February 24, 1949. The Respondent was the successful bidder. With the award of the construction contract, the problem of recruiting quali- fied workmen in sufficient numbers engaged the attention of Industrial Rela- tions Counsel Harry F. Morton. Following the custom which had prevailed for many years before passage of the Act, Morton turned to the various building trades unions, affiliated with the A. F. of L. in the State of Oregon, as a source of labor supply. He realized, he testified, that the Respondent would never be able to procure "some craftsmen" unless they were obtained "through and from the unions." As an example, he cited the "high line" operators, over whom the Operating Engineers claimed jurisdiction. On about March 25, 1949, Morton telegraphed Richard Gray, president of the Building Trades Department of the A. F. of L., at Washington, D. C., furnished him with information regarding the nature and extent of the project, and sug- gested a meeting for "the pre-job conference." Gray invited the various inter- national unions, constituents of the Building Trades Department, to attend the conference with the Respondent's representatives at Salem, Oregon, April 4, 1949. At the outset of this conference, according to Morton, he immediately raised the question of the effect of the Labor Management Relations Act, 1947, on, former hiring practices in the industry which had resulted in virtual closed- shop conditions. Morton proposed a collective bargaining agreement with the labor organizations represented, under which they would furnish the Respondent with workmen for the project, but stated firmly that, although the Respondent would bargain with those unions on behalf of workmen whom they furnished, it would not accord those unions exclusive recognition, would not limit itself exclusively to those unions as the sole source of labor supply, and would not grant any form of union security, except to the extent and in the manner per- mitted under the existing law. The unions apparently acceded to these terms, and a collective bargaining agreement, dated April 6, 1949, was then entered into between the Respondent, as contractor, and the Building and Construction Trades Department of the American Federation of Labor, the International u See N. L. R. B. v. Ozark Dam Constructors et al., 190 F. 2d 222 (C. A. 8), enfg., in respects material hereto, 86 NLRB 520. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions, and Local Unions affiliated with the Building and Construction Trades Department, collectively described in the contract as "UNION." 13 Some 17 such organizations, including the Building and Construction Trades Department, vari- ous district and trade councils, international unions, and their affiliated locals, representing the participating building trades unions , signed the contract as parties, or in token of their approval.'4 The International Union of Operating Engineers, and Engineers Local No. 701, Portland, Oregon, named herein as Party to the Contract, were among the signatories. Industrial Relations Coun- sel Morton and Duncan Campbell, then director of industrial relations for the Detroit Dam Project," on behalf of the Respondent, and Herbert Rivers, secre- tary-treasurer of the Building and Construction Trades Department, A. F. of L., F. D. Van Sweringer, executive secretary of the Building and Construction Trades Council of Salem, Oregon, and various international and local representatives signed the contract at Salem, Oregon, on April 6, 1949, but execution of the document was not completed until some 10 days later. The record does not dis- close the actual date of execution by the Operating Engineers, but, according to Local 701 Business Representative L. E. Egan, who attended the conference of .April 4, 1949, he signed the contract on behalf of Local 701 some 2 to 5 days later. By its terms, the agreement was to become effective "upon its execution by the parties," and to remain in full force and effect until completion of the project. Wage rates governing all job classifications, as set forth in schedules attached to the contract, were made subject to modification upon 60 days' notice by any of the parties prior to January 31, 1950, or any anniversary date prior to comple- tion of the project. Perusal of the crucial hiring provisions of the contract discloses no conflict with the Act.16 Thus, the contract provides for no unlawful preferential hiring. Union security is made conditional upon the procural of the appropriate authori- zation required,by the Act. And, although the contract provides for the impo- sition of strict closed-shop conditions in the event of statutory amendment per- mitting such degree of union security, or in the event of repeal of the Act, this provision does not impair the validity of the contract. It should be noted also that the contract does not, in terms, grant the Operating Engineers, or any of the other contracting unions, exclusive recognition. Moreover, the complaint does not allege, nor does the General Counsel contend, that the contract is intrinsically illegal. What is, in effect, alleged and contended is that (1) in administering the con- tract, the Respondent has, in fact, if not in terms, accorded the Operating Engi- neers, exclusive recognition ; (2) with respect to the Operating Engineers, at least, the Respondent entered into the contract at a time when it did not have in its employ a representative complement of employees in the classification of "the trade of machinist and in related work" ; and (3) in administering the contract, the Respondent has granted the Operating Engineers closed-shop conditions, far 13 By the terms of the contract, however, it was agreed that the Building and Construc- tion Trades Department of the A. F. of L, and the International Unions, signatory to the contract, were acting merely as agents for their affiliates and members and were to be exempted from liability as principals for any breach of the contract by any of their affiliates. "The building trades represented were the operating engineers , carpenters , common laborers , teamsters , plasterers , painters, and sheetmetal workers. By a "letter of under- standing," dated April 5, 1949, attached to the contract , and containing job classifications and minimum wage rates , blacksmiths , steel sharpeners , hammer operators, and helpers were included in the "Master Agreement." 14 Succeeded on June 15, 1949, by Jack O. Murray. 16 The pertinent provisions are detailed in Appendix A, annexed to this Report. CONSOLIDATED BUILDERS5 INC. 991 greater than the union security permitted by the Act, even when authorized after the appropriate proceedings. Nothing in the Act prohibits an employer from dealing with a minority union on behalf of its members only. What the Act does prohibit is recognition by an employer of a union as exclusive representative of its employees within an appropriate unit when the union does not in fact represent a majority of the employees in said unit. If the contract here is to be construed.as a contract covering members only, then the fact that the Union may not have represented a majority of the Respondent's employees in an appropriate unit at the time the contract was executed, would not invalidate the contract. According to the Re- spondent and the Operating Engineers, the contract amounted to no more than a mutual accord upon the terms and conditions upon which the Union would fur- nish, and the employer hire, members in the required classifications. If nothing more were involved, this particular allegation would fail, for it no longer appears open to question that an employer may, without infringing upon the Act, agree with a union to hire from among its members, utilizing the union's hiring hall as a medium of recruitment, providing that in so doing the employer does not dis- criminate against employees or applicants for employment on the basis of membership or nonmembership in a labor organization," except to the extent and in the circumstances permitted by the Act. Considering, first, the question of whether, despite the absence from the con- tract of a specific provision granting the Operating Engineers exclusive recog- nition, the parties, in- administering the contract, actually regarded it as one for exclusive recognition. For, if they did so, the omission of such a recognition clause would not be determinative of the extent of recognition.18 The record affords no affirmative evidence as to whether in practice the Operating Engineers confined its bargaining activities to matters pertaining to its members only. It is evident, however, from the language of the contract, especially Article 3, entitled COVERAGE, and the classifications and wage scales annexed to and forming part of the contract, that the parties regarded the contract applicable to all employees in the specified classifications, including those whom the Operating Engineers claimed to represent, rather than to. members of the respective unions alone. Thus, coverage under the contract is not limited merely to union members, but extends to "workmen in the classifi- cations listed in the hereto appended wage schedules, employed on all construc- tion work of the Contractor in connection with the Detroit Dam Project," with exclusions not here material. (Emphasis supplied.) It is, therefore, apparent, and the undersigned finds that, notwithstanding the absence from the contract of express language according the Operating Engineers exclusive recognition, in the administration and application of the contract, the Respondent recognized the Operating Engineers as the exclusive bargaining agent of all the Respondent's employees in the classifications directly involved in this proceeding. Any doubt that this is so is dispelled by the evidence regarding the experience subsequently encountered by the applicants for employment, as related hereinafter. It therefore becames necessary to determine whether, at the time it was accorded exclusive recognition, the Operating Engineers, in fact, represented a majority in a representative com- plement of the Respondent's employees in an appropriate unit. For, as the Board has he]d, to permit a labor organization to act as the statutory bargain- ing representative of employees when it does not represent such a majority, is to 17 Hunkin-Conkey Construction Co., 95 NLRB 432, and cases cited. ' 78 Standard Oil Co. of California, 62 NLRB 449, 453; cf. Merrill Stevens Dry Dock A Repair Co., 49 NLRB 698. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deny employees the fullest freedom in the exercise of the right to select their bargaining agent, and to participate in the determination of the terms and condi- tions of their employment. On April 6, 1949, the date of the collective bargaining agreement, the pre- liminary work of clearing the terrain and opening access to the job site had scarcely begun. This preparatory work, performed by a subcontractor of the Respondent, commenced about April 1, 1949, and continued until the early sum- mer of 1950. According to the testimony of O. M. Mikkelsen, the Respondent's mechanical superintendent," the first employee, a "cat skinner," 20 was employed on or about April 1, 1949. The first employee engaged to perform repair and maintenance work on operating equipment, was hired April 4, 1949. Because progress on the job at this time was relatively slow and the amount of equip- ment in operation small, the caterpillar and power shovel operators generally performed their own maintenance work. The Respondent's payroll records reveal that the first workweek in which personnel in the category of field classifications were hired 21 was the week- ending April 10, 1949. On Monday, April 4, the first day of that workweek, there were on the payroll six field employees, consisting of one bulldozer op- erator, one shovel operator (both included in job classifications under the heading, operating engineers), two laborers, and two carpenters. During this same period, the Respondent employed two mechanics, in addition to Ralph Winchell, foreman of the machine shop, where hoppers and trusses were fabricated and structural members welded. A compilation of the Respondent's payroll records further reveals that, for the week ending April 10, 1949, the total complement of field employees, including I labor foreman and 1 mechanic foreman, amounted to 20. Of this number, 1 was a shovel operator, and 3 were bulldozer operators, making a total of 4 field employees in classifications over which the Operating Engineers claimed juris- diction. For the week ending April 17, the total complement had increased to 71, including 6 foremen in various job classifications, 2 mechanics, 1 oiler, 1 com- pressor operator, 2 blade operators, 1 shovel operator, and 4 bulldozer operators, making a total of 11 field employees in classifications claimed by the Operating Engineers." Without detailing corresponding figures for the entire intervening period, the compilation discloses that, for the week ending August 28, 1949, the total complement of field employees had increased to 4S0, including 36 foremen in various classifications, 18 mechanics,23 17 oilers, 5 compressor operators, 2, blade operators, 1 hoisting operator, 1 mixer mobile operator, 11 shovel operators, 16 bulldozer operators, and 1 scoop mobile operator, all of the enumerated job 19 In this capacity, Mikkelsen, an employee in various Kaiser enterprises for over 15 years, had complete responsibility , under General Manager Russell Hoffman , for the super- vision of the quarry and gravel plant operations , the railroad department, pipe installation, the machine shop, and the operation and maintenance of all construction equipment , as well as the hiring of all personnel engaged in the operation and maintenance of the departments Involved. 20 Trade parlance for caterpillar tractor operator , presumably derived from the term "mule skinner." n Under an exhibit entitled "Wage and Salary Classifications Index," job classifications on the Project were identified under applicable code series , as follows : 100-199, Salary Exempt ; 200-299, Office Clerical, Engineering & Misc. ; 300-399, Foremen ; and 400-999, Field. 22 The job classification, "mechanic ," appearing in the compilation, does not appear on the schedule of job classifications and wage scales, annexed to the contract, over which the Operating Engineers claims jurisdiction . The job classifications, "H. D. mechanic or welder" and "H. D. mechanic's helper," are, however, listed, "H. D.," in each instance, denoting "heavy duty." 22 See preceding footnote. CONSOLIDATED BUILDERS, INC. 993. classifications comprising categories of employees claimed by the Operating Engineers. The estimated complement of field employees at the time of the hear- ing was 700, with no corresponding breakdown shown as of that date. The Respondent contends that all the building trade crafts employed at the Detroit Dam Project constitute a single appropriate unit. In support of this contention, Industrial Relations Counsel Morton testified that since 1940, the trend in the heavy construction industry on the Pacific Coast has been toward a single unit comprising all building trade crafts, employed by the contractor, with *the exception of crafts represented by the electrical union .14 In view of the evidence regarding the complement of field employees on each of the crucial dates, it is unnecessary to determine, for the purpose of this proceeding, whether the crafts represented by the Operating Engineers, alone, constitute an appropriate unit or whether, as claimed by the Respondent and the Union, all the building trade crafts combined, engaged on the project, with the exception noted, constitute a single appropriate unit. For, as the Board has stated, in a comparable situation : 'It is thus clear, without considering further increments thereafter and without attempting to determine the scope of an appropriate unit, that in virtually all categories, including that of the operating engineers, the work force at the time the contract was signed was not at all representative of that shortly to be employed. Under these circumstances, the union could not have been, as required by the proviso to Section 8 (a) (3), the representa- tive of the employees in an appropriate unit 25 Although the primary issue there involved was the validity of a closed-shop con- tract under the original Act, and the propriety of discharges pursuant to such contract, the basic principle involved is essentially the same. By recognizing the Operating Engineers as the exclusive representative of the Respondent's employees involved herein, at a time when said Union did not represent, and could not have represented a majority of said employees, the Respondent accorded that union unwarranted recognition. It is no defense, as the Operating Engineers argues, that substantially all employees performing the work involved were, in fact, members of its labor organization, and that, had a representation election been held, the Operating Engineers would have commanded a majority of the employees in said classifications. Nor, is it a defense, as the Operating Engineers appears to contend, that it may have pre- empted or occupied the heavy construction field in particular craft or crafts involved. By such unlawful recognition, the Respondent has not only deprived employees eligible to be employed in the crafts involved of the right of self- determination guaranteed under the Act, substituting its choice of bargaining representative for that of the employees involved, but has also furnished un- lawful support and assistance to the Operating Engineers. That the Respondent (lid not, in addition, consent in writing to the granting of closed-shop or other 2' It is substantially on this ground that the Respondent and the Operating Engineers contend that all the labor organizations, signatory to the collective bargaining agreement, are indispensable parties to this proceeding, and that the same should be dismissed or stayed until those labor organizations have been afforded an opportunity to appear and participate in the proceeding. Although certain allegations in the complaint appear to charge that the Respondent has granted exclusive recognition to all the signatory unions, at a time when the Respondent did not have in its employ a representative complement of employees in all classifications set forth in the agreement, the General Counsel specifically stated on the record that the complaint was directed only to the contractual relations. between the Respondent and the Operating Engineers ; that he did not intend to challenge the validity of the contract with respect to labor organizations other than the Operating Engineers ; and that he was seeking no remedial relief against such organizations. 2a Guy F. Atkinson Co., et at, 90 NLRB 143, 145. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-security conditions, does not render its conduct in granting the union exclusive recognition any less violative of the Act Y8 Although the record falls short of establishing that the Respondent has en- gaged in unfair labor practices, within the meaning of Section 8 (a) (2) of the Act, as alleged by the General Counsel, the record sufficiently establishes that the Respondent granted the Operating Engineers exclusive recognition as bar- gaining representative, and executed a collective bargaining agreement with said Union, at a time when the Respondent did not have in its employ a rep- resentative complement of the employees involved. It is, therefore, found that, by the foregoing conduct, the Respondent has granted said Union illegal support and assistance, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7, in violation of Section 8 (a) (1) of the Act. B. Discrimination in regard to hire and tenure of employment The complaint alleges that the Respondent has discriminated against Harry W. Keller, Clyde V. Anderson, Nouns W. Tucker, Harold Anderson, Harold L. Thayer, and Axel B. Sundberg,27 as applicants for employment at the Detroit Darn Project, by refusing them employment because they were not members of, or had been granted permits by, Operating Engineers Local 701, thereby encour- ing membership in said Union. Harry W. Keller, a machinist,28 had been employed at the Oregon Shipyard at Vancouver, Washington, an enterprise of one of the Henry J. Kaiser companies, from sometime in 1942, when the yard opened, until November 1, 1945, part of the time as a supervisor of machinists under the general supervision of O. M. Mikkelsen, who later became mechanical superintendent of the Detroit Dam Project. Early in June 1949, Keller learned through newspaper accounts of Mikkelsen's connection with the project, and called on Mikkelsen at the Respondent's offices at Mill City. The project was still in the preliminary stage of clearing the terrain and opening access to the job site, with some excavation in progress. After making some general observations of the extent of progress from the high- way some distance away, Keller returned to Mill City and asked Mikkelsen about the prospects of a job at the project. He was told that there was nothing avail- able as yet becau'7e the operation was still in the early stages, but that Mikkelsen might have something for him in about 6 weeks. Keller expressed his eagerness to work for Mikkelsen again, and, after some casual conversation, left. Early in July Keller again visited Mikkelsen at the project, but learned that progress had not been as rapid as had been anticipated and that there was still no work available for him. He returned on July 15 but, in Mikkelsen's absence, left without talking to anyone else. About the first week of August, Keller again went to the project and observed that work was still in the preliminary stages. He noticed, however, that the machine shop was in the process of being erected, although only the concrete slab foundation had been completed. When he called on Mikkelsen, he learned that the situation was substantially unchanged, and that, in addition, the Respondent was encountering difficulty in obtaining ze It may be noted, in passing, that alternative hiring provisions under which the Re- spondent undertook to grant the Union what amounted to closed-shop conditions, in the event of amendment to or repeal of the Act, indicate a willingness to accord the Union the fullest measure of security, and that, but for the interdiction of the statute, the Respondent would have done so. 27 The spelling of names has been corrected to conform to the record. "Keller was either a member of, or had a withdrawal card from, the IAM at the time. CONSOLIDATED BUILDERS, INC. 995 high lines for electricity. Mikkelsen suggested that Keller keep in touch with him at about 2-week intervals Sometime between August 15 and 18, when Keller again visited the project, be observed that the exterior of the machine shop appeared to have been com- pleted, and that a crated drill press was standing at the east end of the machine shop building. Learning that Mikkelsen was at Mill. City, he went there, only to discover that Mikkelsen was not expected until later. He endeavored to obtain a pass to the machine shop or the dam site, but this was refused him. While waiting for Mikkelsen, Keller learned from a truck driver, whom he had known at the Oregon Shipyard, that Ralph Winchell and an employee named McCarthy had been engaged for the machine shop. When Mikkelsen finally arrived, Keller again asked him about the possibility of a job. Mikkelsen told him that the Respondent had begun to hire help, that be had already engaged two men in the machine shop. referring to Winchell and McCarthy, and that the Respondent would require men from time to time as work progressed According to Keller, Mikkelsen told him, "I advise you to get .straightened up with your union and come in. Let me know about it." Keller replied , "I understand you don't have Machinists in here," obviously alluding to the IAM. Mikkelsen agreed, and told Keller that he would "have to come through 701," the Operating Engineers Local, and suggested that he see either "McDon- nell," at Salem, or Schell, at Portland. 2' Keller went to the office of Local 701, at Salem, but when he found that "McDon- nell" was not there, returned to Portland and inquired for Schell at the Local's office there. He was told that Schell was in Chicago. and not expected until the following Monday. Keller asked whether he could talk to anyone else in Schell's absence, and was referred to a person whose name he could not recall. He told this man, however, that he had an opportunity to go to work at the Detroit Dam, and wanted to know what his chances were of getting into the Union. He was told that his chances were very slight because there were men "sitting all around waiting to get on the job themselves and until such time he didn't think that Mr. Schell . . . would consider it." Keller asked whether Schell was cer- tain to return on Monday, and was told that he was expected then. Keller, went to the union hall the following Monday, but was told that Schell had not yet returned. He thereupon left and made no further effort to obtain employment at the project io Mikkelsen testified that Keller had visited him at Mill City on three occasions, the first time, according to Mikkelsen, late in April 1949. On that visit, Mikkel- 22 McDonnell was not otherwise identified, though It Is obvious that be was a union repre- sentative of the Operating Engineers. It Is probable that he was the Jack McDonald, identified in the job classifications and wage scales covering operating engineers , annexed to the collective bargaining agreement, as representative of the International Union of Operating Engineers. Reference to Schell was obviously to Herbert Schell, whom Director of Industrial Relations Murray identified elsewhere in the record as the dispatcher of Local 701, at Portland. According to Murray , all job requisitions with Local 701 were usually placed by him either with Business Agent Louis E. Egan or Dispatcher Schell 80 Evidence as to what occurred at the union hall when this, and the other applicants for employment involved herein, went there was received over the Respondent 's objection and motion to strike. Since these applicants reported to the union hall upon the express instructions of Mikkelsen , or, as will later appear, Foreman Ralph Winchell , and, in some instances, reported the results of their visits to Mikkelsen and Director of Industrial Rela- tions Murray, the undersigned overruled the objections , and denied the motions to strike. In any event, the evidence of what occurred at the union hall on these occasions is narrated to afford continuity In the sequence of events relating to their efforts to obtain employ- ment, and is not relied on in arriving at the ultimate findings, which are based solely on the directions and instructions found to have been given the applicants by Superintendent Mikkelsen and Foreman Winchell regarding the requirement of membership in or clearance by the Operating Engineers . Schell himself did not testify. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sen testified, Keller told him that he was "semiretired," and that he was not interested in a job at that time. On his second visit, Keller indicated that he would probably be looking for a job later, but, because he was aware that the project had not progressed very far, was not then seeking employment. On the occasion of his final visit in mid-August, Keller inquired "how things were shap- ing up." Mikkelsen told him that there was as yet no work available for ma- chinery installation, the type of work for which Keller had expressed an interest, but that there probably would be later on. There was no dispute that Keller was neither a shop machinist nor a heavy duty mechanic, and that he was interested only in a job involving the installation of machinery required for the operation of the dam itself. According to Mikkel- sen, he told Keller that work of that nature was still a long way off 31 Mikkelsen was not questioned at the hearing regarding the statements at- tributed to him by Keller on the occasion of his last visit, and Keller's testimony, that Mikkelsen told him that the Respondent had begun to hire employees ; that two men had already been employed in the machine shop; that more men would be required as work progressed ; that he would be well advised to -get straight- ened up" with the Union ; and that he would "have to come through 701," is un- contradicted. The undersigned, therefore, finds, on the basis of Keller's credible and uncon- tradicted testimony, that Mikkelsen did, in fact, make the statements which Keller attributed to him on the occasion in question Clyde V. Anderson, an automobile, heavy duty mechanic, and machinist, and member of the TAM, went to the Detroit Dam Project on August 18, 1949, after learning that George Humphrey, a rigger foreman with whom he had worked at another job, was employed there in some supervisory capacity. Anderson encountered Humphrey at the dam site as the latter was driving in a truck with another man who, it later developed, was Ralph Winchell, the machine shop fore- man. Asked about the prospect of obtaining work, Humphrey told Anderson that he was "full up," and referred him to Winchell. Anderson asked Winchell if there were any jobs available for a heavy or light duty mechanic or in the "mechanical line " Winchell asked if he could operate a lathe. When Anderson replied that he could not, Winchell told him that he had enough heavy duty and truck mechanics for the time being. He asked Anderson, however, to which local be belonged, and when Anderson mentioned Lodge 63, an affiliate of the IAM, Winchell said that Anderson would have to belong to Local 701 in order to work at the project. Anderson rejoined, "The hell I do." Although there was a great deal of din at the time, caused by dumping operations, Anderson testified that he then heard Winchell remark that it would, only cost Anderson $75 to join Local 701. A car approached and Humphrey identified the occupant as Superintendent Mikkelsen. Anderson made no. attempt, however, to talk to Mikkelsen and left the site. He did not go to the office of Local 701, and made no further attempt to obtain employment at the Project. Since neither Humphrey nor Winchell were called as witnesses, Anderson's testimony regarding his discussion with them, stands uncontradicted. There was, moreover, no showing that either of these men was unavailable to testify at the time of the hearing. With respect to Winchell, the Respondent, apparently preferring to rely upon what it contended was a failure of proof that WinchelL a Mikkelsen testified , without contradiction , that work in connection with the installa- tion of machinery for the operation of the dam had not yet begun at the time of the hearing.. CONSOLIDATED BUILDERS, INC. 997 was a supervisor or person for whose conduct the Respondent is liable, elected not to call him as a witness a2 The undersigned finds, on the basis of Anderson's credible and undenied testi- mony, that Winchell made the statements to which Anderson testified. It, there- fore, becomes necessary to determine whether these statements can be attributed to the Respondent Ralph Winchell was originally hired as a heavy duty mechanic in the machine shop. Because the Respondent had no layout man in its employ at the time, Winchell acted in this capacity, working with hand tools, in connection with the fabrication work for the gravel plant. At that time his work consisted of transferring dimensions or shapes from drawings to plates, laying out and fabricating boiler plates, structural shapes, "I" beams, angle irons, hoppers, frameworks for conveyors, and similar parts. In this work he was assisted by two men. On July 11, 1949, he was appointed foreman of the machine shop under the. general supervision of Superintendent Mikkelsen. From about that date until about mid-September 1949, Winchell had immediate supervision over from four, to six men. According to Director of Industrial Relations Murray, Mikkelsen was the only person authorized to requisition employees for the machine shop, as well as for other operations under his supervision. As far as the record reveals, Winchell apparently had no authority to hire or discharge employees under his immediate supervision, or make recommendations therefor. In view of the- magnitude of the project, and the rather extensive personnel system which the Respondent employed, this is not surprising. Nor is this lack of authority entirely determinative of Winchell's status. It is evident, from the record as a whole that, at the very least, Winchell had authority to direct the employees. under his supervision in a manner which required the use of independent judg- ment, rather than routinely. The undersigned, therefore, finds that, at all times material herein, Winchell was a supervisor within the meaning of the Act, and, hence, a person whose conduct and statements are attributable to the Respond- ent.' Moreover, since the statements attributed to Winchell coincided so gen- erally with the instructions found to have been given by Mikkelsen, an admitted management representative, to other applicants for employment during this period, it is evident, and the undersigned finds, that Foreman Winchell's state- ments to Anderson are attributable to the Respondent on this ground as well. Anderson had had no previous experience as a machinist or heavy duty me- chanic in the heavy construction industry, his experience having been confined generally in the past to that of marine machinist and automobile mechanic. As a marine machinist he had served a period of about a year working on trucks, cranes, and other movable equipment at the Oregon Shipyard, and for several years afterward as a marine machinist for another concern. For about 6 months in 1948, he had worked for the Respondent as a marine machinist at Swan Island. The Respondent contends, with respect to Anderson, as it does the other appli- cants for employment, that the only jobs available at the time of their applica- tions were in the classification of heavy duty mechanics. It will be seen from the testimony of Anderson that Winchell had asked him if he could operate a lathe, indicating that there was a job available then or shortly in the machine shop. Anderson frankly admitted that he was not qualified to perform such an operation. A comparison of the experience requirements, however, of a marine 82Although the General Counsel had issued a subpena for Winchell , he stated on the record that he did not intend to seek enforcement of the subpena , and rested without calling him as a witness. sa At the time of the hearing, Winchell 's official title was superintendent of maintenance and equipment. 215233-53-64 '998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machinist with those of a heavy duty mechanic indicates that Anderson pos- sessed skills which the Respondent could have utilized then or in the near future. Winchell, however, made it clear to Anderson that he would not be able to work on the project unless he belonged to Local 701, pointing out that it would only cost him $75 to join that local. It is, therefore, immaterial to a determination of whether Anderson was un- lawfully discriminated against that, at the time of his application, there may not have been a job available which he was qualified to perform. For, as the Board has held, the Act is violated by an employer when he notifies applicants for employment that membership in a union is a condition precedent to such employment, even though no jobs may then be avalable TM Under such circum- stances, the discrimination occurs when the employer imposes such an unlawful condition, because the applicant is denied an opportunity to be considered for em- ployment when employment for which he is qualified, and able and willing to accept, becomes available. "This method of discrimination," as the Board has said, "is of a continuing nature and quite obviously preclude[s] [the applicant's} actual employment when jobs bec[o]me available" afterward. Nonus W. Tucker, a machinist, and member of the IAM, went to the project on or about August 23, 1949, after also learning through newspaper accounts that Mikkelsen, for whom he had woi ked as a machinist and tool shop foreman at the Bonneville and Grand Coulee Dams, was a superintendent at the job. Prevented by a guard from entering the darn site, Tucker left for the company offices at Mill City, where he requested a pass to see Mikkelsen. While there he recog- nized Paymaster Ray Kindler, who furnished him a pass. Tucker returned to the dam site and found Mikkelsen in the machine shop building. Tucker ob- served that a lathe had been set up in the machine shop. Other machines, not connected for want of electricity, were resting on skids. One or two of the lathes and some compressors were still in the process of being wired. None of the machinery in the machine shop, however, was yet in operation. Tucker testified that he asked Mikkelsen for a job. Mikkelsen told him that he had a job for him, and introduced him to Foreman Winchell, under whom, Mikkelsen said, Tucker would be working. In Winchell's presence, Mikkelsen told Tucker that he would be required to join the Operating Engineers at Port- land, adding that he intended to requisition two men from that Union next day. Mikkelsen advised Tucker to return to Portland, "get into the Operating Engineers the first thing in the morning," and to notify him as soon as he had done so. According to Tucker, Mikkelsen told him that he would "put in a call for two men," and that Tucker "could come out with them." The men were joined presently by a machine shop employee, named McCarthy, known to Tucker, who had worked with him at other projects, by the nickname "Midnight Mac." Tucker asked McCarthy, in the presence of Mikkelsen and Winchell, whether he had had any difficulty getting into Local'701. McCarthy said that he had not, and that he had "come right out." Tucker returned to Portland but, because of the lateness of the hour, waited until next morning to report to the hall of Local 701. Explaining the purpose of his visit to a girl in the office, he was told that the dispatcher had not yet arrived but that Tucker might wait for him. When the dispatcher, whom Tucker identi- fied as Schell, arrived, Tucker told him that he was a member of Lodge 63, IAM, but that he had a job at the Detroit Dam, and wanted to join the Union or obtain a work permit. According to Tucker, Schell told him that he had "three strikes on him," because he had obtained his own job. Schell added that the Union had 3 A. B. Swinerton, et al., d/b/a Swrnerton and Walberg Co., 94 NLRB 1079, and cases cited. CONSOLIDATED BUILDERS, INC. 999 five men out of work, and that Tucker would have to wait until they went to work before he would be permitted to join the Union or obtain a work permit. Tucker telephoned Mikkelsen and reported his experience at the union hall, commenting that it looked as though he would be unable to work at the Project. He asked Mikkelsen if there were any way he could obtain employment there without "going through 701." Mikkelsen said that there was not. Tucker re- turned to the union hall next day, and for several mornings thereafter, in an effort to obtain clearance, but without avail. The following Monday, August 29, Tucker testified, he telephoned Director of Industrial Relations Murray, whom he had known through his former employ- ment, at the project offices. Tucker told him that Mikkelsen wanted to give him a job and that he had attempted to join the Operating Engineers , but had been refused. He asked Murray, too, if there were some other way he could obtain employment at the project without going through the Operating Engineers. Murray said that he knew of none, and, according to Tucker, transferred the call to Mikkelsen. Tucker repeated what he had told Murray and asked Mikkel- sen the same question. Mikkelsen's reply was the same as Murray's. With that, Tucker said he might as well abandon any hope of employment at the Project 86 Mikkelsen's testimony regarding Tucker's visit to him at the project is in conflict with Tucker's version to this extent. According to Mikkelsen, while admitting that he had told Tucker that he "would have a job for him," he testi- fied that he had also told him that he had already placed a requisition for two men, which lie "assumed ... had gone through Mr. Murray's office" to Local 701. Mikkelsen testified that he told Tucker that he could obtain a job provided he were "one of the two men" for whom requisitions had already been placed, be- cause he had work for no more than two men. w Tucker testified that on this occasion he engaged in a three -way, simultaneous, or conference call with Murray and Mikkelsen over long distance, telephone from his home in Portland. Both Murray and Mikkelsen testified , however, that due to the very limited telephone facilities at the project at the time, it would have been impossible to engage in such a three-way conversation . Moreover , Murray testified that he participated in no such conversation, but, instead, that, at about 5 p. in., he received a long distance call from Tucker at the Senator Hotel, at Salem, where Murray was staying at the time . According to Murray, Tucker , after detailing his experience as a shop machinist at Bonneville Dam and other projects at which he had worked for Mikkelsen, told him that he had been informed at Local 701 that, if Murray would place a requisition for a man, Tucker could get a job at the project. Murray testified that Tucker therefore asked him to place such a requisition with Local 701, but that he told him he had no order for such a workman at that time. Tucker denied that he had called Murray at the Senator Hotel at the time in question, or at any other time, and insisted that his only telephone conversation with Murray was during the three -way conversation shortly before noon of the day in question. Tucker's wife , who testified that she was present when her husband placed the call to Mill City, corroborated him as to the time the call was made, and as to the fact that Tucker apparently spoke to both Mikkelsen and Murray during this telephone call. Since it is unlikely that Tucker would have known of Murray's presence at the Senator Hotel at the time in question, and would, theretore, have had no reason to call him there, and since it is undisputed that Tucker spoke to both Mikkelsen and Murray at some time during the day in question , it is probable that when , as his wife testified, Tucker placed a person-to -person call for Murray at 11111 City , presumably after talking to 11likkelsen, the operator traced Murray to the Senator Hotel at Salem. Conceivably , Murray may not have been reached until later in the day. That Tucker may have mistakenly concluded that he had partici- pated in a three-way conversation is not unlikely The incident has importance only in determining the weight to be attributed to his testimony. What is crucial is the fact that he reported to both Mikkelsen and Murray that he had attempted to obtain clearance from Local 701, as directed, in effect, by Mikkelsen, and that he had been unsuccessful. On the basis of Tucker's credible testimony, and an appraisal of the testimony of Mikkelsen and Murray, regarding the substance of the telephone conversations , the undersigned is satisfied that Tucker's credibility has not been impaired by the fact that he may have been under a misapprehension regarding the so-called three-way conversation , or by his insistence that he had no telephone conversation with Murray at the Senator Hotel. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mikkelsen explained that the day before Tucker called on him for a job, he- found he needed two heavy duty mechanics for repair work on caterpillar tractors and power shovels, mcluding one who could operate a Cummins Diesel engine. Having learned earlier through the manufacturer's representative that qualified men were available from the Dorena Dam Project, which was drawing to a close, he notified Murray of the availability of such men, and instructed Murray to requisition them.30 It was the next day, according to Mikkelsen, that Tucker called on him seeking employment. Mikkelsen admitted that Tucker had worked for him on three different jobs over a period of 3 or 4 years, and that he was familiar with his experience and skill as a machinist in the operation of lathes, milling machines, shapers, and all types of machine tools. It is, therefore, evident that Mikkelsen. either required a shop machinist of Tucker's experience and qualifications or believed that Tucker was qualified to perform the work which was then available. Otherwise,. Mikkelsen would have had no purpose in directing Tucker to report to Local 701 in an effort to be dispatched as one of the two heavy duty mechanics whom, according to Mikkelsen, he had already requisitioned. Despite the foregoing, Mikkelsen also testified that there were no jobs available for shop machinists at the time of Tucker's application for employment. The- machine shop, Mikkelsen testified, was not put in operation until about Septem- ber 10, 1949, after the Bonneville Dam substation, from which the project was to, procure its electrical power, had been energized, and the necessary electrical connections in the machine shop completed. In addition, according to Mikkelsen, because the equipment was new, and breakdowns relatively rare, there was no- work, at the time of Tucker's application, for a full-time shop machinist, any necessary replacements being manufactured in outside shops. The first shop machinist, according to Mikkelsen and Murray, was not hired until October 12, 1949. Since the Respondent does not contend that it utilized the union hall exclu- sively as a means of recruiting personnel on a nondiscriminatory basis, the ques- tion arises as to why Mikkelsen regarded it necessary for Tucker to be dispatched through the union hall. Assuming that Mikkelsen, through Murray, had placed requisitions for two heavy duty mechanics, whom the Union was prepared to dispatch without regard to membership or nonmembership in the Union , no satis- factory explanation was offered as to why Mikkelsen or Murray could not have notified the Union that the Respondent had already procured one such employee, and revoked the requisition for one of the two on file. The reason advanced, that the men requisitioned through the Union might already have been en route to the project, does not appear very persuasive, especially since the two men actually hired through the Union appear on the payroll for the first time on August 23, 1951, 2 days after Tucker's application. A mere telephone call to the Union should have intercepted them in time. Mikkelsen admitted that Tucker telephoned him, after his fruitless efforts to join Local 701, to tell him that he "couldn't get out." Mikkelsen expressed his regrets, told him that no further requisitions had been placed with Local 701, explained that "it just happened that the two men had been on order, the order had been filled, [that he] needed no further men, and for him to call later." Significantly, Mikkelsen did not deny Tucker's testimony that Mikkelsen had 36 Murray, however, testified that Mikkelsen told him that he wanted two men who were not only heavy duty mechanics but could also perform machine shop work , such as fabri- cating parts necessary for replacement . Thus, it is evident, not only from the fact that Mikkelsen told Tucker that he had a job for him, but also from Murray's testimony, that there was work available at the time which Tucker was qualified to perform . Murray further testified that he requisitioned these men through Local 701 Business Agent Egan because he did not know the names of the men , and asked Egan to Iocate them CONSOLIDATED BUILDERS, INC. 1001 instructed him to "get into the Operating Engineers the first thing in the morn- ing," and notify hint as soon as he had done so. There can be little doubt, espe- cially in the light of Mikkelsen's instructions to Keller and Foreman Winchell's statement to Clyde V. Anderson, that they would be obliged to clear through 'Local 701, that, in advising Tucker to "get into the Operating Engineers," Mik- kelsen clearly implied that Tucker would have to join or obtain clearance from ithat Union before he could work at the project. The record fairly establishes that, at the time of Tucker's application, there was, in fact a job available, which he was qualified to perform, and which he would have received if he had succeeded in obtaining clearance from Local 701. But, even if no such job were available at the time, the requirement that he obtain membership in or clearance from the Operating Engineers as a condition 'precedent to employment with the Respondent, constituted discrimination in .regard to hire and tenure of employment, because it denied him an opportunity to be considered for employment, which he was qualified to perform, when such. employment actually became available. He was pot, moreover, required to con- tinue to make the futile gesture of reapplying for employment when such employ- ment later became available in order to establish the discrimination against him.94 Harold L. Thayer had been a machinist for about 10 years at the time of the hearing, and a member of the IAM about as long. Sometime in August 1949, he learned through a former fellow employee, Victor Novak, with whom he had worked for Columbia Machine Works at Vancouver, another Henry J. Kaiser enterprise, of employment opportunity at the Detroit Dam Project. On Saturday, August 20, 1949, Thayer, accompanied by Harold Anderson, a combination welder and maintenance man, went to the dam site and sought out Novak, who advised them to see Mikkelsen. They learned that Mikkelsen had only just left for Portland, but were told that if they hurried they might overtake Foreman Winchell, and set out after him. Failing to overtake Winchell, they returned to Vancouver. The following Saturday, both men returned to the project, and went to the company offices at Mill City. After being refused a pass to see Winchell, Thayer asked for an opportunity to talk to him on the telephone, and was put through to a man who identified himself as Winchell. Thayer asked him for a job as a machinist. Questioned about his qualifications, Thayer told Winchell that he could operate lathes, mills, milling machines of all types, planers, and shapers, in short, any machine usually operated by a shop machinist. Winchell told Anderson that he had a job for him, provided he was a "finished machinist." Thayer assured him that he was, and also told Winchell that he had with him a man named Anderson who was a combination welder. Winchell said that he had a job for Anderson as well . He told Thayer, however, that they would have to_ obtain clearance through Local 701 in order to work at the project. Learning that there was an "A. F. of L. employment office" at the dam site, Thayer and Anderson went there to inquire whether the Operating Engineers had an office there. They were informed that they would have to go to Portland and see a man named Schell. When they arrived at the office of the Operating Engineers in Portland, and asked for Schell, they were directed to the dispatch- er's window. Thayer told the man at the window, whom he identified as Schell, that he and Anderson had obtained jobs at the Detroit Dam Project, and were seeking clearance from the Union so that they could go to work, Schell told them that they could not solicit their-own jobs. Thayer protested that they had 87 A. B. Swinerton, et at., d/b/a Swinerton and Walberg Company, supra ; Arthur G. McKee and Company, 94 NLRB 399; N. L. R. B. v. Daniel Hamm Drayage Company, Inc., 185 F. 2d 1020 (C. A. 5), enfg. 84 NLRB 458. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a right to do so under the Taft-Hartley Act. A heated argument ensued, and, finally, Schell took their names and addresses and said he would call them. He told them, however, that, if they applied for membership in the Operating Engineers, they would have to appear before its executive board, and, if they were accepted for membership, would be placed at the bottom of the list, from which they would be dispatched. Schell stressed, however, that they could not procure their own jobs. The men left and did not return to the union hall thereafter. On a Wednesday, soon afterward, Thayer and Anderson drove to Mill City. After stopping at the dam site, Thayer, in Anderson's presence, telephoned Winchell from the offices of the local telephone company. Thayer reported to Winchell that he and Anderson had been unable to obtain clearance from the Operating Engineers, and that it appeared that they would be unable to be dispatched to the job, unless they could be cleared through the IAM. Winchell told him that there was probably no way they could obtain employment at the project, except through the Operating Engineers. Asked if the IAM was likely to obtain a contract at the job, Winchell replied that the IAM had nothing to do with the job. That ended the conversation and the men left. Thayer and Anderson had no further discussion with anyone else regarding employment at the project, and made no further attempt to obtain employment there." Axel B. Sundberg, a marine machinist, had been employed at the Oregon Ship- yard at Vancouver, from 1942 to 1946, for 3 of those years under the supervision of Mikkelsen. He, too, had learned of the project through newspaper accounts, and, early in June 1949, called on Mikkelsen at the company offices at Mill City. Sundberg asked Mikkelsen if there was any work available in connection with the installation of flood gates, turbines, motor pumps, or the like. Mikkelsen informed him that the operation had not progressed beyond the clearing and excavating stage, and that it would be some time before any installation work of the type described by Sundberg would be available. Mikkelsen did, however, mention that the penstock installation would be among the first of such jobs, and suggested that Sundberg see him in about 3 months. In about midAugust, Sundberg again visited Mikkelsen at the offices of Mill City, and asked him if there was any job opening at the time. Mikkelsen told him that the situation was substantially unchanged, but asked him whether he was a heavy duty mechanic. When Sundberg said that he was, Mikkelsen fur- nished him with a pass to Foreman Winchell in the machine shop. Sundberg went there and asked Winchell if he had any work that he could do. Winchell pointed to some lathes and other machinery in the shop and told him that as soon as the marlines were connected he would require 4 or 5 men to operate them. Sundberg said that he did not consider himself qualified to operate those machines, and that his experience in the operation of lathes and in metal machine work had been limited. Asked whether he could perform maintenance work on caterpillar tractors, cranes, and similar equipment, Sundberg said that he did not have sufficient experience in that type of work, and that he was seeking field installation work. Winchell then told him that a conveyor system was being installed in a few days, and asked him if he could perform that type of work. Sundberg said that he could. Winchell then told him to go to Portland and apply for membership in Local 701, adding that he would send for him through that local in the near future. Sandberg thanked him and left. xe As has already been stated elsewhere, Winchell did not testify and the testimony of Thayer, corroborated, to the extent of his participation, by Harold Anderson, remains undenied For reasons already stated, the undersigned finds that Winchell's statements are attributable to the Respondent. CONSOLIDATED BUILDERS, INC. 1003. Next morning, Sundberg went to the office of Local 701 at Portland, and spoke to a man, whom he could not otherwise identify, but whom he had observed issuing slips to men in the union hall. Sundberg assumed that the man was the union dispatcher. Sundberg asked him if the Union was still accepting appli- cations for membership in Local 701. After some hesitation, the man said, "You see what it looks like. I got a few men on the waiting list." Sundberg replied that he appreciated the fact, but that he had been promised a job at the Detroit Dam Project, and had been told that it would be necessary for him to join that Union before he could be hired. The man then told him that the initi- ation fee was $75 and the monthly dues $2.50. Sunberg said that he would think it over and let him know. He did not identify himself, and left. He never returned to the union hall, and made no further attempt to obtain employment at the project. According to Mikkelsen, he could recall only one meeting with Sundberg at the project, which he placed as sometime in August 1949. Mikkelsen testified that Sundberg had worked for him on machinery installation at the shipyards in Vancouver and, although he regarded him as a "conscientious and good worker," his ability as a machinist and mechanic was limited. Sundberg was not, in Mikkelsen's opinion, a qualified or competent heavy duty mechanic, and, to Mikkelsen's knowledge, he had never worked in that capacity. Nevertheless, Mikkelsen testified, he would probably have tried to place Sundberg if he had "had any place to put him." Mikkelsen testified further that he tried to find a job for Sundberg, but that there was none available which Sundberg was qualified to perform. Mikkelsen was not questioned, however, regarding Sund- berg's testimony that Mikkelsen had sent him to Winchell, and Winchell, himself, was not called as a witness. Sundberg's testimony, therefore, regarding his conversation with Mikkelsen, in which the latter referred him to Foreman Win- chell, and the testimony regarding Sundberg's conversation with Winchell, in which the latter indicated that work would be available within the next few days in connection with the installation of the conveyor system, which Sundberg. was qualified to perform, is undenied. On the basis of Sundberg's credible and uncontradicted testimony, the under- signed, therefore, finds that Mikkelsen did, in fact, refer Sundberg to Foreman Winchell at the time in question, and that Winchell told Sundberg, in substance, that he would be required to obtain membership in or clearance from Local 701 as a condition precedent to employment with the Respondent. C Respondent's Contentions Underlying the Respondent's basic position is the contention that, in recruiting workmen as machinists or mechanics for the project, it has followed a policy, dictated by Industrial Relations Counsel Morton, and relayed to Director of Industrial Relations Duncan Campbell, and Murray, his successor, of hiring only persons with experience as heavy duty mechanics, as distinguished from shop machinists, without regard to union affiliation or any jurisdictional dispute between the IAM and the Operating Engineers, of which Morton was admittedly aware. Without passing on the issues involved in this jurisdictional dispute, there is evidence in the record that, in certain instances, machinists or mechanics may possess the necessary skill required in the performance of the work of both shop machinists and heavy duty mechanics, depending on the training and experience of the persons involved. In general, however, it appears that, since 1944, at least, the duties of a machinist have generally involved the operation of lathes, drill presses, boring mills, shapers, and other stationary machine tools 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the machine shop, while the duties of a heavy duty mechanic have generally entailed the operation, maintenance and repair of automotive, Diesel, and heavy duty construction equipment in the field, such as caterpillar tractors, bulldozers, cranes, power shovels, drum hoists, crushing equipment, and the like The IAM, however, offered evidence at the hearing tending to show that members of its labor organization have performed, and are engaged in performing, the work of heavy duty mechanics for various construction companies. The complaint, it will be recalled, makes mention only of "the trade of machinists and related work." The term "machinist" is nowhere listed in the job classifications included in the collective bargaining agreement. The classifi- cation most nearly approaching that of machinist appears as "H. D. Mechanic or Welder," (and "H. D. Mechanic's Helper.") At the hearing, the General Counsel declined to take a position as to whether he contended that the classifi- cation "trade of machinist or related work" was coextensive with, or embraced within, the classification of heavy duty mechanics, on the ground that it was immaterial in determining whether any discrimination had, in fact, been prac- ticed. To the extent that it may be material to the issue of whether the Respondent prematurely granted the Operating Engineers exclusive recognition as the bargaining representative of all the Respondent's employees in the trade of machinist and related work, it must be assumed that the job classification of machinist is encompassed within the descriptive term, heavy duty mechanics. This issue has already been decided adversely to the Respondents9 On the issue of discrimination, however, the question is not whether, as both the Respondent and the Operating Engineers appear to contend, members of the Operating Engineers, rather than of the IAM, are entitled to perform the work of heavy duty mechanics at the Detroit Dam Project. Although an attempt was made throughout the hearing to convert the proceeding into a determination of the jurisdictional dispute between those labor organizations, (a dispute which has evidently existed for many years, and which has resisted attempts at solution by the parent organization), the issues raised by the complaint do not require a resolution of the dispute and no attempt has been made to do so. What we are concerned with, here, is whether the Respondent required applicants for employment in the trade of machinist or related work, to obtain membership in, or clearance from, the Operating Engineers, as a condition precendent to employment with the Respondent, thereby imposing closed-shop conditions proscribed by the Act. The Respondent denies that it has pursued any such discriminatory hiring policy or practice at the Detroit Dam Project. On the contrary, it asserts that, pursuant to the provisions of the contract, and the policy expressed at the bargaining confere ice which preceded the execution of the contract, it has hired employees for the classifications involved herein from all available sources, recruiting personnel from among former employees, from among employees at similar projects which were nearing completion, and utilizing the facilities of manufacturers' representatives and various unions, including the Operating Engineers,99 as sources of labor supply. It is evident, however, that the Re- "The evidence discloses that on about October 11, 1949, the Respondent finally estab- lished a separate classification for machinists , and thereafter, between October 12, 1949, and May 15 . 1950 , hired some 10 employees in that classification . Whether or not any or all of said employees were members of, or had obtained clearance from, the Operating -Engineers is not affirmatively, shown. Murray , however, testified that none of these employees were required to become members of or obtain clearance from said Union 40 Though not the IAM, allegedly because, in the opinion of Director of Industrial Rela- tions Murray , that organization did not have among its members an adequate supply of the type of heavy duty mechanics or operating engineers which the Respondent required in its operation. CONSOLIDATED BUILDERS, -INC. 1005, spondent relied heavily upon the Operating Engineers as its chief source of supply for machinists or heavy duty mechanics. This was obviously a substan- tial factor in the Respondent's decision to execute the contract with the Operating Engineers, realizing, as Industrial Relations Counsel Morton testified, that, on the basis of past experience, the Respondent would be unable to utilize that Union as a source of labor supply, without entering into a contract establishing wage scales and working conditions. The Respondent and the Operating En- gineers deny, however, that the execution of this contract or hiring practices thereunder resulted in according preference of employment to members of the Operating Engineers. In-practice, according to the Respondent's evidence, Superintendent Mikkelsen furnished Murray with requisitions, orally, during the early stages of construc- tion, and, in writing, later, of his personnel requirements. Murray, in turn, usually communicated by telephone with Louis E. Egan, financial secretary and business agent of Local 701, or with Herbert Schell, the Union's dispatcher at Portland, and notified him of the Respondent's requirements Because of Egan's familiarity with the best qualified men in the trade of operating engineers,- and their whereabouts from time to time, Murray testified he frequently called on Egan for aid in recruiting such personnel. For his part, Egan advised Murray in the early stages of construction that he had many "top men" available. On one occasion, during this period, Egan protested to Murray that the Respondent had been employing members of the Operating Engineers, whose work for other contractors had been completed, who had failed to notify the Union that they had changed jobs. Egan requested Murray to notify the Union whenever the Respondent hired members of that organization, irrespective of the local to which they belonged. According to Murray, he reminded Egan that, under the collective bargaining agreement, the Respondent was at liberty to employ labor from any source it wished, and declined to comply with Egan's request. In all instances, according to Murray, employees in the classifications involved were hired without regard to membership in the Operating Engineers. Egan,- too, testified that, to his knowledge, the Respondent hired employees in classifica- tions of heavy duty mechanics and operating engineers without requiring mem- bership in or clearance from the Union, and that in the employment of such per- sonnel no discrimination was practiced by the Respondent. Egan also testified that, at the request of the Respondent, the Union frequently dispatched named individuals to jobs as operating engineers, and that Murray sometimes requisi- tioped men through the Union who were not members of that labor organization. Egan explained, however, that no one would be dispatched by the Union, even if he were a member, unless there was on file a requisition for a job. Although it is fairly apparent from the record as a whole that by far the bulk of machinists or heavy duty mechanics, employed on the project, were members of the Operating Engineers, this fact, alone, is, of course, insufficient to support a finding that the Respondent practiced discrimination in employment based on membership in that labor organization. It is not surprising that substantial' numbers of workmen possessing the requisite skills and experience involved were affiliated with the Operating Engineers. But, even if the Respondent had entered into an agreement with the Operating Engineers, whereby it undertook to procure all its personnel through the offices or hiring hall of that Union, such an agreement would not violate the Act, unless it were shown that, in the ad- ministration and enforcement of the agreement, the Respondent discriminated. in employment on the basis of membership in that organization.91 S3 Hunkin-Con key Construction Co., 95 NLRB 433, and cases cited. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned has fully considered the principles outlined, and has weighed the testimony given by Morton, Murray. and Egan regarding the Respondent's practices and procedures in recruiting the personnel involved. On the basis of the entire record, however, the undersigned concludes and finds that their testi- mony fails to overcome the positive, affirmative, and credible testimony given by the applicants for employment herein, that they were notified, at the time of their respective applications, by responsible management representatives, that membership in, or clearance by, the Union would be required as a condition precedent to their obtaining employment. The undersigned further finds that, because of their failure to obtain such membership or clearance, the Respondent denied them employment at the project, thereby discriminating in regard to hire and tenure of employment. The record as a whole, apart from the specific instances of discrimination shown, falls short of establishing that the Respondent, in applying and admin- istering the contract, uniformly, and as a matter of policy, required applicants for employment as machinists or heavy duty mechanics to become members of or clear through the Operating Engineers as a condition of employment. Nor, does the record sufficiently establish that the discrimination against the applicants involved was committed in pursuance of an illegal agreement, understanding, or arrangement between the Respondent and the Operating Engineers. Such a finding, however, is unnecessary to establish the specific discrimination against the individuals involved. For, it is sufficient to establish the discrimination that the Respondent accepted "the determination of a labor organization as to who [should] be permitted to work" and, in the absence of a lawful contractual obli- gation for such action, the Respondent's conduct was violative of the Act 43 On the basis of the foregoing and on the entire record, the undersigned con- eludes and finds that, by refusing employment to Harry W. Keller, Clyde V. Anderson, Nonus W. Tucker, Harold Anderson, Harold L. Thayer, and Axel B. Sundberg, because they did not obtain membership in or clearance from the Operating Engineers, the Respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the IAM, and encouraging membership in the Operating Engineers, in violation of Section 8 (a) (3) of the Act, and, by the foregoing conduct, and by informing said appli- cants for employment that they would be required to obtain membership in, or clearance from, said Operating Engineers as a condition precedent to employ- ment, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. thereby violating Section 8 (a) (1) thereof. In view of the Board's recent holding,4' it is unnecessary to pass, at this time, upon the Respondent's contention, urged as one of the grounds for its motion to dismiss the complaint with respect to the applicants involved, that at the time of their respective applications for employment, the Respondent had no jobs available for which the applicants were qualified One final contention should perhaps be mentioned. In their amended answer, and as a ground for their motions to dismiss the complaint or stay the pro- ceedings, the Respondent and the Operating Engineers maintained that it is manifestly unjust for the Board to proceed with this unfair labor practice proceeding, in the light of its previously announced policy of declining to hold representation or union-authorization elections in the building and construction industry. It is argued that the policy of the Board has deprived these parties 42 Engineers Limited Pipeline Company, 95 NLRB 176, and cases cited 43 A B. Swinerton, et al, d/b/a/, Sivinerton and TValberg Company, supra, and cases cited. CONSOLIDATED BUILDERS, INC. 1007 of the opportunity of establishing the Union's majority status, and its right to negotiate an agreement for a union shop. This argument ignores the fact that, as the Board has frequently held, representation elections are not the only means of establishing a union's majority If the Respondent had been desirous of complying with the provisions of the Act, it could have resorted to other methods of establishing the Union's majority. The failure or inability to afford an opportunity for election cannot, therefore, be relied on as a defense to the unfair labor practices in which the Respondent has engaged. Moreover, the ,amended Act permits of no exceptions, and neither economic necessity nor exigencies of the industry afford any justification for disregarding the plain mandate of the statute. Nor does the fact that the Board has not yet succeeded in evolving a practical solution for conducting union-authorization elections in the industry, afford the Respondent any justification for violating the Act. For, what the Respondent and the Operating Engineers apparently overlook, is the fact that, even if such it union-authorization election had been conducted, and the Union had prevailed, it would have been entitled to negotiate only for the type of union security permitted by Section 8 (a) (3) of the Act. In no .event nn ould the parties have been permitted to enter into a closed-shop contract. Therefore, assuming that a union-authorization election had been held, as a result of which the Operating Eaglnders obtained` the union security permissible under the Act, the union security thus achieved would afford no justification for the conduct in which the Respondent engaged here. For, by requiring the applicants for employment to become members of or obtain clearance from the Operating Engineers as a condition precedent to employment, the Respondent 'was imposing closed-shop conditions exceeding the permissible limits of the Act, even when authorized by an election." The contentions are, therefore, rejected as without merit IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent, described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening .and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent entered into a collective bargaining :agreement with the Operating Engineers, on or about April 6, 1949, recognizing said Union as the exclusive representative of the employees within the classi- fication including machinists and heavy duty mechanics, notwithstanding that said Union did not then represent a majority of the Respondent's employees within the said classification By such conduct, the Respondent rendered un- lawful assistance and support to said Operating Engineers, and interfered with, restrained, and coerced said employees in the exercise of the rights guaranteed in Section 7 of the Act. In order to restore the status quo, and to afford said employees the full right of self-determination and freedom of choice of representatives, guaranteed by the Act, it will, therefore, be recommended 44 See Engineers Limited Pipeline Company, supra. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent withdraw and withhold all recognition from said Operating Engineers as the exclusive representative of the employees, within the classi- fications involved, for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of em- ployment, unless and until said Operating Engineers shall have been certified by the Board as the duly selected representative of said employees for the purpose of collective bargaining. It will further be recommended that the Respondent cease and desist from. giving effect to this, or any other collective bargaining agreement with the said Operating Engineers, respecting rates of pay, wages, hours of employment, or other conditions of employment, unless and until it shall have been certified' by the Board ; provided, however, that nothing in these recommendations shall be deemed to require or authorize the Respondent to reduce or diminish its wage, hour, or other substantive features of its relations with the employees, which the Respondent may have established in the performance of said collec- tive bargaining agreement, as extended, renewed, modified, supplemented, or superseded. It has also been found that the Respondent has discriminated in regard to the hire and tenure of employment of Harry W. Keller, Clyde V. Anderson, Nonus W. Tucker, Harold Anderson, Harold L. Thayer, and Axel B. Sundberg, by requiring, as a condition precedent to their employment, that they obtain membership in or clearance fiom said Operating Engineers, thereby encourag- ing membership in said labor organization. It will, therefore, be recommended that the Respondent offer said applicants immediate employment in positions substantially equivalent to those discriminatorily denied them, on the dates of their respective applications for employment at the said Detroit Dam Project, without prejudice to their seniority or other rights or privileges. It will further be recommended that the Respondent make each of said persons whole for any loss of earnings, suffered by reason of the Respondent's discrimination, by payment to each of them of a sum of money equal to that which would have earned as wages from the date of the refusal of employment to the date of the offer of employment, less the net earnings of each during said period.' Back pay shall be computed on the basis of the Board's formula in F. W. Woolworth' Company,48 and, in accordance with the Board's policy, the Respondent shall make available to the Board upon request such payroll and other records neces- sary to facilitate the computation of the amount of back pay due. Back pay, however, shall accrue only from the date jobs were or became available which said applicants for employment were qualified, ready, able, and willing to accept at said project. In view of the scope and character of the unfair labor practices in which the Respondent has been found to have engaged, and in order to insure to employees and applicants for employment the full freedom to exercise the rights guaranteed by the Act, it will further be recommended that the Re- spondent cease and desist from interfering with, restraining, or coercing such persons in their right to self-organization in any manner. Upon the basis of the above findings of fact and upon the entire record in, the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. International Association of Machinists, A. F. of L., and Engineers Local 701, affiliated with International Union of Operating Engineers, all affiliated 45 Crossett Lumber Company, 8 NLRB 440, 497-98. 40 90 NLRB 289. CONSOLIDATED BUILDERS, INC . 1009 with the American Federation of Labor, 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 Harry W. Keller, Clyde V. Anderson, Nouns W. Tucker, Harold Anderson, Harold L. 'Thayer, and Axel B. Sundberg, thereby discouraging membership in International Association of Machinists, A. F. of L., and encouraging membership in Engineers Local 701, affiliated with International Union of Operating Engineers, and the American Federation of Labor; the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By recognizing said Operating Engineers, and executing a collective bargain. Ing agreement with said Union on behalf of the Respondent's employees, in the ,classifications herein involved, at a time when the said Operating Engineers did not, in fact, represent a majority of said employees, the Respondent has un- lawfully assisted and supported the said Operating Engineers, and has thereby ,engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 6.1Ti1 `Respondent has not enga'ged` in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. [Recommendations omitted from publication in this volume.] Appendix A ARTICLE 2. Purpose. Contractor has entered into a contract with the Corps of Engineers for the construction of certain features of the Detroit Dam on the North Santiam River. In the performance of said contract, Contractor will require large numbers of experienced craftsmen and workmen usually found only among members of Unions. It is the purpose of this agreement to secure an adequate supply of competent and capable workmen necessary for the per- formance of the work under the said contract, to determine and settle the hours, wages and working conditions under; which such workmen shall be employed, to ipVIrp' as, much continuous enipJoy-meut, ass possible for such workmen and to prevent interruptions in the performance of the work which might result from labor differences. ARTICLE 3. Coverage. This agreement shall cover workmen in the classifica- tions listed in the hereto appended wage schedules, employed on all construction work of the Contractor in connection with the Detroit Dam Project, but it shall ,not include any supervisors except those listed in the attached schedules who heretofore have customarily been members of their respective Unions, nor shall it include professional employees as defined in the Labor Management Act of 1947. If the workmen are required in classifications not listed in the attached schedules which the Unions can supply, the schedules shall be amended by agree- ment of the parties, adding such classifications and specifying the wage rates to be paid for each. ARTICLE 4. Haring. Section 1. (a) The hiring of workmen and the discharging of employees upon ,the request -of the Union shall be in accordance with the National Labor Rela- tions Act as amended by the Labor Management Relations Act of 1947. 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) The Contractor will notify the Union of its need for workmen at least 48 hours before the workmen are need on the job, if possible. The Union, will furnish an adequate supply of workmen in the classifications, at the rates, and under the terms specified herein, when and as requested by the Contractor, if such workmen are available. Section 2. In the event the Union shall qualify and procure necessary author- ity as required by Section 8 (a) (3) of the National Labor Relations Act, as amended, then upon such qualification and procurement of authority, the follow- ing provisions shall become effective : All workmen employed by the Contractor to perform work within the properly determined craft jurisdiction of the respective Union shall become members of the Union on the 30th day, or immediately thereafter , following the beginning of their respective employment, and shall thereafter maintain membership in good standing in the Union as a condition of employment. The removal and re- placement of any workmen, upon prior written notice to the Contractor, shall not interrupt or interfere with the progress of the work. Section 3. In the event the National Labor Relations Act, as amended, should be further amended or repealed to the extent that subsequent laws and govern- mental regulations would permit, the foregoing Section land 2 shall become inoperative and the following four paragraphs , ( a), (b), (c) and ( d) shall be substituted therefor : (a) All men hired for work covered by this Agreement shall be members of proper International Unions signatory to this agreement, affiliated with and who remain affiliated with the Building and Construction Trades Department of the American Federation of Labor, except when hired under the circum- stances set forth in paragraph (b) below. (b) If the contractor has placed orders for men with the Union and said Union fails to supply competent men within forty-eight (48) hours of the filing of such application orally or otherwise, the Contractor shall be free to hire the necessary workers where and when he chooses without regard to Union membership. When the Union has men available , but from a distance which will not permit their arrival within the 4S hour period , and advises the Contractor that such men are enroute, the Contractor will extend the time for one additional 48 hour period. Any non-union men so employed by the Contractor shall apply for membership in the Union within ten days. If such non -union employee refuses to join the Union , or for reasons of ineligibility be rejected by the Union, the Contractor agrees not to keep such non-union men on the work longer than necessary to complete a shift, provided , however, that either the Contractor or the Union have available competent workman or workmen to replace the non- union man or men in question without interrupting the progress of the work. (c) The Union assumes all obligations for the continued membership of its members and the collection of their dues, and the Union shall retain the right to discipline its members at all times, even unto removal from the job for viola- tion of the Constitution, by-laws, and working rules, provided, however, there shall be no stoppages of work while removal and replacement of men of like qualifications, and satisfactory to the Contractor, are being affected. (d) Notwithstanding anything contained herein, each Union signing this agreement agrees that it will accept as a member on the same basis and terms as other- new members are accepted each and every individual whom the Con- tractor shall sponsor to any one of such Unions for membership during the life of this Agreement. The Union agrees that it will accept for membership such applicants without discrimination and in accordance with its regular established procedures. PACIFIC LAUNDRY COMPANY, LIMITED ARTICLE 16, Smviua clause. 1011 Should any part of hereof, or any provision herein contained ,, be rendered or declared invalid by reason of any existing or subsequently enacted legislation or by any decree of a court of competent jurisdiction , such invalidation of such part or portion of this Agreement shall not invalidate the remaining portions hereof; provided , however, upon such invalidation the parties agree immedi- ately to meet and negotiate such parts or provisions affected . The remaining parts or provisions shall remain in full force and effect. PACIFIC LAUNDRY CODIPANY, LIMITED and INTERNATIONAL BROTHER-- HOOD OF TF.AMS'nlRS, CHAUFFEURS, WARE]iOUSEMEN & HELPERS, LOCAL UNION 946, AFL, PETITIONER. Case No. 37-BC-90. June ;'6, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Wallace E. Royster, hearing. officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed., Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds: `1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act,' for'the 'following reasons: The Employer operates a cleaning establishment at Honolulu, Hawaii. Its plant consists of 2 buildings, separated by a private alley, which house, respectively, the Employer's laundry and dry cleaning departments, each with approximately 60 employees. The Petitioner seeks a bargaining unit limited to employees in the Employer's dry cleaning department. The Employer contends that a unit so limited is inappropriate and that the only unit appropriate for its employees is one which includes both the dry cleaning and the laundry departments. I The petition and other formal papers were amended at the hearing to reflect the- Employer's correct name. 99 NLRB No. 147.