Acme Equipment Co.

ACME EQUIPMENT COMPANY 153 recommended that the Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due. Upon the basis of the foregoing findings of fact and upon the entire record of the case, I make the following : CONCLUSIONS OF LAW 1. American Federation of Grain Millers, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in respect to the hire and tenure of employment of Wil- liam L. Dudley, 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 such discrimination and by interrogating, threatening, and warning employees in connection with activity in behalf of the labor organization, the Respondent has interfered with, restrained , and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and has thereby violated Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] FRANK P. SLATER, AN INDIVIDUAL, D/B/A ACME EQUIPMENT COMPANY and MILLWRIGHTS UNION LOCAL 102, UNITED BROTHERHOOD OF CAR- PENTERS & JOINERS OF AMERICA, AFL INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 68 and MILLWRIGHTS UNION LOCAL 102, UNITED BROTHERHOOD OF CARPEN- TERS & JOINERS OF AMERICA, AFL. Cases Nos. 20-CA-628 and 20-CE-215. January 13,1953 Decision and Order On June 19, 1952, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached thereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in 'Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 102 NLRB No. 19. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following modifications.' The Trial Examiner rejected the defense that the Respondent Acme shut down the Brewery project on August 10, 1951, because of a short- age of materials, and concluded that Acme discharged the 4 employees involved in this proceeding, members of the Millwrights, as the result of the Respondent Machinists' demand that they be replaced by members of the Machinists. The Trial Examiner further concluded that, even if the project was shut down because of a shortage of mate- rials and for that reason the 4 employees were laid off at the time of the shutdown, when work at the Brewery project was resumed the Respondent Acme yielded to the Respondent Machinists' demand in not recalling the 4 employees because of their union affiliation, and thereby discriminatorily discharged them. On the basis of these findings, the Trial Examiner recommended, among other things, that the Respondents "jointly and severally make each of the said employ- ees whole for any loss of pay he may have suffered by reason of the Respondent Company's discrimination against him by payment to him of a sum of money equal to the amount of wages he would have earned from employment on the project at the Brewery between August 10, 1951, and the date he would have completed such employment but for the discrimination against him." s The evidence in the record is undisputed that there was a shortage of materials at the time of the shutdown on August 10, 1951. On the basis of the facts detailed in the Intermediate Report, we are con- vinced and find that Acme shut down the Brewery project on August 10 because of a shortage of materials; that, absent the Machinists' de- mand for replacement of millwrights by machinists, Acme would have laid off the 4 employees here involved pending resumption of work at the project when material would become available; but that, instead, Acme discharged these 4 employees on August 10 and failed to recall them on August 20, 1951, when work at the project was resumed, because of the Machinists' demand that they be replaced. Accordingly, we shall not require payment of back pay for the period between August 10 and August 20, 1951, as there was no work avail- able at the Brewery project during this interim period. In all other respects, we adopt the Trial Examiner's recommendations as to back pay. 8 The figures as to Acme's sales, set forth in the second paragraph of section I of the Intermediate Report, refer to sales made by Acme on its own account and not as agents for Standard Conveyor Company, as the report seems to imply. 8 The Trial Examiner recommended that the four employees involved here should not be reinstated , on the ground that they were hired for a particular project and that project has been completed . We adopt this recommendation. ACME EQUIPMENT COMPANY Order 155 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: I. The Respondent, Frank P. Slater, an individual, doing busi- ness as Acme Equipment Company, his agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership of employees in International Asso- ciation of Machinists, Local Lodge 68, or in any other labor organiza- tion, or discouraging membership in any labor organization by dis- criminatorily discharging his employees or by discriminating in any other manner against them in regard to their hire or tenure of em- ployment or any other term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or similar manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Millwrights Union Local 102, United Brotherhood of Carpenters & Joiners of America, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or 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 organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with International Association of Ma- chinists, Local Lodge 68, make whole Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good in the manner set forth in section V of the Intermediate Report entitled "The Remedy," and hereinabove. (b) Post in conspicuous places, including places where notices to employees are customarily posted, at his principal place of business in San Francisco, California, copies of the notice attached hereto and marked "Appendix A.114 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by Frank P. Slater, an individual, doing business as 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be amended by substituting for the words "A Decision and Order," the words "A Decree of the United States Court of Appeals, Enforcing an Order." 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Acme Equipment Company, be posted by him immediately upon receipt thereof and maintained by him for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by said Frank P. Slater, an individual, doing business as Acme Equipment Company, to insure that said notices are not altered, defaced, or covered by any other material. (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of back pay due under the terms of this Order. (d) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order, what steps the said Frank P. Slater, an individual doing business as Acme Equip- ment Company, has taken to comply herewith. II. The Respondent, International Association of Machinists, Local Lodge 68, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Frank P. Slater, an individual, doing business as Acme Equipment Company, or any other employer, except as authorized by Section 8 (a) (3) of the Act, to discharge employees or in any other manner discriminate against them in re- gard to their hire or tenure of employment, or any other term or condi- tion of employment, because such employees are not members of International Association of Machinists, Local Lodge 68, or are members of any other labor organization. (b) In any like or similar manner restraining or coercing employees of Frank P. Slater, an individual, doing business as Acme Equipment Company, or of any other employer, in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Frank P. Slater, an individual, doing business as Acme Equipment Company, make whole Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good in the manner set forth in section V of the Intermediate Report entitled "The Remedy," and hereinabove. (b) Post in conspicuous places, including places where notices to its members are customarily posted, at its usual membership meeting place, copies of the notice attached hereto and marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by an official repre- sentative of the said Respondent Union, be posted by it immediately 5 See footnote 4. ACME EQUIPMENT COMPANY 157 upon receipt thereof and maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by said Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Twentieth Region signed copies of the notice attached hereto and marked "Appendix B," for posting, the Respondent Employer willing, at the place of business of Frank P. Slater, an individual, doing business as Acme Equipment Company, at San Francisco, California, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director for the Twentieth Region, shall, after being signed as provided in paragraph II, subparagraph 2 (b) of this Order, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Twentieth Region in writ- ing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : I WILL NOT encourage membership by my employees in INTER- NATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 68, or in any other labor organization, or discourage membership in any labor organization, by discriminatorily discharging or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. I WILL NOT in any like or similar manner interfere with, re- strain, or coerce my employees in the exercise of the right to self- organization, to form labor organizations, to join or assist MILL- WRIGHTS UNION LOCAL 102, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- lective 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 organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. I WILL jointly and severally with INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 68, make whole Everett Jordan, 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chester Steward, Albert G. DoBruck, and Ralph R. Good for any loss of pay they suffered as a result of discrimination against them. All of my employees are free to become, remain, or refrain from becoming, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. FRANK P. SLATER, an individual, doing business as ACME EQUIPMENT COMPANY, Dated -------------------- Employer. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL MEMBERS OF THIS LOCAL AND TO ALL EMPLOYEES OF FRANK P. SLATER, AN INDIVIDUAL, DOING BUSINESS AS ACME EQUIPMENT COMPANY : Pursuant to a decision and order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : EVE WILL NOT cause or attempt to cause FRANK P. SLATER, an individual, doing business as ACME EQUIPMENT COMPANY, or any other employer, except in accordance with Section 8 (a) (3) of the Act, to discharge employees or in any other manner discrimi- nate against them in regard to their hire or tenure of employment or any other term or condition of employment, because such em- ployees are not members Of INTERNATIONAL ASSOCIATION OF MACHINISTS, LocAL LODGE 68, or are members of any other labor organization. EVE WILL NOT in any like or similar manner restrain or coerce employees of FRANK P. SLATER, an individual doing business as ACME EQUIPMENT COMPANY, or of any other employer, in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist MILLWRIGHTS UNION LOCAL 102, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and 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 agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. ACME EQUIPMENT COMPANY 159 WE wfLL jointly and severally with FRANK P. SLATER, an individual, doing business as ACME EQUIPMENT COMPANY, make whole Everett Jordon, Chester Steward, Albert G. DoBruck, and Ralph R. Good for any loss of pay they suffered as a result of discrimination against them. INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 68, Labor Organization. Dated-------------------- By--------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE On August 29, 1951, Millwrights Union Local 102, United Brotherhood of Car- penters & Joiners of America, AFL, filed two charges with the National Labor Relations Board, one against the Respondent, Frank P. Slater, an individual doing business as Acme Equipment Company, and the other against the Re- spondent, International Association of Machinists, Local Lodge 68.' The charges were subsequently amended. Based upon the charges, as amended, the General Counsel of the Board, on January 15, 1952, issued a consolidated complaint a- le; ing that the Machinists and Acme had engaged and were engaging in unfair labor practices within the meaning of applicable sections of the National Labor Relations Act, as amended (61 Stat. 136-163), referred to herein as the Act. The Respondents have been duly served with copies of the complaint and of the charges respectively applicable to them. With respect to the alleged unfair labor practices, the complaint alleges, in sum, that Acme engaged in the installation of a conveyor system for San Francisco Brewing Corporation at its plant in San Francisco, California; that on or about August 10, 1951, in the course of such installation, the Machinists, in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act, caused Acme to discharge Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good "by threatening to picket the project, and by requesting and demanding" their dis- charge, "because they were not members in good standing of Respondent Union" ; and that Acme, in contravention of Section 8 (a) (1) and 8 (a) (3) of the Act, "because of the threats" made by the Machinists, and acting "at the request and demand" of that organization, discharged the four employees on or about August 10, 1951, for the reason that they "were not members in good standing" of the Machinists. Each of the Respondents filed an answer, denying, in substance, that either had engaged in unfair labor practices. Without elaborating on the jurisdictional issues at this point, it should also be noted that the Respondent Company denies some, and the Respondent Union all, of the jurisdictional averments of the complaint. a Millwrights Union Local 102, United Brotherhood of Carpenters & Joiners of America, AFL, will also be referred to herein as the Millwrights ; International Association of Machinists , Local Lodge 68, as the Machinists or Respondent Union ; Frank P Slater, an Individual doing business as Acme Equipment Company, as Acme or the Respondent Company ; and the National Labor Relations Board as the Board. References to the General Counsel include the attorney who appeared for him in this proceeding. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice duly served upon all parties, a hearing was held on March 3 and 5, 1952, at San Francisco, California, before me as duly designated Trial Examiner. The General Counsel, the Millwrights, and the Respondent Company were represented by counsel, and the Machinists by its Grand Lodge representa- tive. All parties participated in the hearing and were afforded a full opportunity to be heard, adduce evidence, examine and cross-examine witnesses, submit oral argument, and file briefs. The Respondents moved to dismiss the complaint at the close of the General Counsel's case-in-chief. The motion was denied. The General Counsel made a motion to conform the pleadings to the evidence with respect to the spelling of names and such formal matters as did not constitute a change in the cause of action stated in the complaint. The Respondents did not oppose the motion, and it was granted. All parties waived the right to submit oral argument. The Millwrights and both Respondents have filed briefs which have been read and considered' Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE ISSUE OF JURISDICTION Acme Equipment Company is the trade name of an individual named Frank P. Slater who is engaged, under his firm name, in San Francisco , California, in the business of selling and installing conveyor and monorail systems and related parts such as hoists, belts, sprockets, and chains. Acme's sales are made as agent, on a commission basis, for a concern known as Standard Conveyor Com- pany. The home office of that firm is in St. Paul, Minnesota, but it also main- tains an office and plant in the building in which Acme's enterprise is located. Acme's installation activities are apparently conducted on its own account and not as agent of Standard Conveyor Company. During the year ending December 31, 1950, Acme sold various types of equip- ment in which it deals to a number of business or industrial firms located in California. The following is a tabulation of such companies and of the dollar value of the equipment sold to them by Acme during the year 1950: Gerber Products Company------------------------------------- $31,613 Tri-Valley Packing Association--------------------------------- 30,421 Hunt Foods, Inc.---------------------------------------------- 14,777 Pacific States Steel Corporation-------------------------------- 5,510 Best Foods, Inc.----------------------------------------------- 3,450 Total-------------------------------------------------------- $85,771 At least four of the companies listed in the above tabulation used the equip- ment they purchased in the maintenance or operation of plants in which they respectively process or manufacture goods.' During the year ending December 2 The Respondent Union 's brief includes in its caption the phrase "Proposed Findings of Fart and Conclusions." Section V of the brief is labeled "Findings of Fact," and section VI "Conclusions." However, section V appears to contain argument , and section VI a renewal of the motion to dismiss, and both the indicated sections and the rest of the brief do not appear to constitute proposed findings of fact and conclusions of law, at least In the customary form. Be that as it may, for reasons that appear in the findings and conclusions set out below, to the extent that sections V and VI may be respectively designed to express proposed findings and conclusions , I refuse to adopt them. 8 Jerome S . Shelton, a sales engineer employed by Acme, described in general term's the use to which Gerber, Hunt, and Best put the equipment, and the inference may be drawn from the nature of the business of Tri-Valley Packing Association and the equipment it ACME EQUIPMENT COMPANY 161 31, 1950 (and "at all times material" to this proceeding, according to a stipula- tion of the parties ), each of the five companies listed above "produced and han- dled goods for shipment outside the State of California, and performed serv- ices" outside the said State, at a value in excess of $25,000. In August 1951, Acme commenced the construction of a conveyor system for the San Francisco Brewing Corporation (referred to below as the Brewery) at that company's plant in San Francisco, and completed the project in Octo- ber 1951. The materials used in the construction work were sold to the Brewery by Acme as agent for Standard Conveyor Company at a contract price of ap- proximately $19,000 (the record contains no evidence of the charge made by Acme for labor ). As its name indicates , the Brewery is engaged in the business of brewing and selling beer. The purpose of the conveyor system was to pro- vide facilities for the movement of empty and full beer bottles between the Brewery's bottling shop and its nearby warehouse. The Brewery "annually" (and "at all times material" to this proceeding, according to the parties' stipu- lation ) ships goods valued in excess of $25 ,000 from its San Francisco plant to places outside the State of California. Acme contends that the Board is without jurisdiction , and claims in the alternative that if the Board has jurisdiction, it ought not to assert it because the evidence does not meet criteria established by the Board for the assertion of jurisdiction. In support of the contention, it is claimed that there is no evidence that "a disruption of the installation project [at the Brewery] in question would affect interstate commerce." The contention is without merit. Quite apart from the fact that Acme is a distribution instrument for a multistate distributor of com- modities, its customers, including the Brewery, are engaged in interstate com- merce, and it is quite plain that the conduct attributed to the Respondents "tended to lead 'to a labor dispute burdening or obstructing commerce"' (N. L. R. B. v Fainblatt, 306 U. S. 601 ).' Thus it is clear that the Board has jurisdiction, and it may be noted that it has exercised it in cases involving, as does this proceeding, an employer engaged in construction work on the plant facilities of an interstate supplier of goods or services.` The question remains whether the evidence is sufficient to meet certain criteria which the Board has asserted it will follow in determining, as a matter of policy, whether it should take jurisdiction. In Hollow Tree Lumber Company, 91 NLRB 635, the Board stated that it would assert jurisdiction over an employer who furnishes goods or services "necessary to the operation of other employees engaged in commerce ... where such goods or services are valued at $50,000 per annum or more, and are sold to enterprises engaged in producing or handling goods destined" for interstate shipment, or "performing services outside the. State, in the value of $25,000 or more." Acme claims that it is inappropriate to use the sales figures for 1950 as it basis for the assertion of jurisdiction . The short answer to that contention is that there is nothing in the Act or in the circumstances of this proceeding to preclude the use of the 1950 sales figures as a basis for the assertion of jurisdiction. No sound reason appears why it would be inappropriate to use evidence of Acme's business transactions during the last full calendar year preceding the year in purchased that, like Gerber, Hunt, and Best, it used the equipment in food processing or packing operations. Sheldon was unable to state the purpose for which Pacific States Steel Corporation purchased its equipment. ' See also, among other cases, Polish National Alliance v. N. L. R. B., 322 U. S. 643, and International Brotherhood of Electrical Workers v. N. L. R. B., 841 U. S. 694. ' See, for example, Paul W. Speer, Inc., 94 NLRB 317; Schweiger Oonstruction Co., 97 NLRB 1407; Foley Bros., Inc., 98 NLRB 1482. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the alleged unfair labor practices occurred as a measure for the determina- tion of jurisdiction . In urging the impropriety of resting jurisdictional findings on the 1950 sales, Acme also maintains that "no connection was established" between such transactions and the installation project at the Brewery in 1951, and it is intimated that the scope of the inquiry into jurisdiction should exclude Acme's sales activities. I find no merit in that contention since the rule is that "in the construction industry, as in others, the Board should determine jurisdic- tion based on the over-all operations of the employer" (Pavl W. Speer, Inc., 94 NLRB 317)." The evidence of the dollar volume of Acme's sales and services to interstate suppliers of goods and services and of its customers ' interstate transactions meets the criteria of the Hollow Tree decision. I find that at all times material to this proceeding, Acme's activities affected interstate commerce within the meaning of the Act, that the Board has jurisdiction of this proceeding, and that the assertion of jurisdiction will effectuate the policies of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Millwrights Union Local 102, United Brotherhood of Carpenters & Joiners of America, AFL, and International Association of Machinists, Local Lodge 68, admit to membership persons employed by the Respondent Company and are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement Acme employs a sales engineer named Jerome S. Sheldon. Among other duties, be sells equipment, submits bids to customers, occasionally arranges for the em- ployment of personnel for Acme's installation projects, and gives direction to the foreman employed on such projects. Sheldon has been employed by Acme for 9 years. During the past 5 years, Acme has employed a foreman named Paul Petersen in various installation projects. Petersen is a member of the Millwrights and has held such membership for 8 years. He resides in San Francisco. As fore- man, he has general supervision over installation workers employed by Acme at a given job site and directs them in the performance of their duties. Unless be is unavailable for some reason, Petersen usually hires the men who work under him. He is customarily told by the Respondent Company how many men to use on a given project. Although he occasionally hires employees directly "if they are available," in the main, he hires help by calling the Millwrights' office and requesting that organization to dispatch the required number of men to the job site. Petersen also has authority to discharge employees, although there are some limitations on his authority which the record does not fully elaborate. Contractual arrangements with the Brewery for the sale of a conveyor system by Standard Conveyor Company and its installation by Acme were made by Sheldon in or about the early part of August 1951. Prior to the commencement of the work, Sheldon spoke to Standard Conveyor Company's project engineer concerning the availability of materials. The project engineer "thought [that] material would be sufficiently fabricated that we just could go right ahead with it." Shortly thereafter, Sheldon told Petersen to hold himself available for the • Cf.. on's grocery Company, 91 NLRB 504, and Federal Stores Division of Spiegel, Inc., 91 NLRB 647. ACME EQUIPMENT COMPANY 163 job which was scheduled to start soon , and that "material would be there." Petersen at the time was in process of completing a job in Sacramento for the Respondent Company. The installation work began at the Brewery on August 8, 1951. Prior thereto, Petersen had made arrangements for DoBruck , who had been working with Petersen In Sacramento, to work at the Brewery. DoBruck, a member of the Millwrights, had been employed by Acme under Petersen's supervision "for quite a while." To fill other openings, the foreman, in accordance with his general practice, called the Millwrights' office in San Francisco and requested that three more men be assigned to the project. The Millwrights dispatched Good, Jordan, and Steward to the job. All three are members of the Mill- wrights. Good reported on the morning of August 8, and Jordan and Steward on the morning of August 9. Work on the project was suspended on Friday, August 10, resumed on Monday, August 20, and was completed the following October The employment of Jordan, Steward, DoBruck, and Good was termi- nated at the project by the Respondent Company on August 10. When work was resumed on August 20, for reasons which will appear below, they were not recalled to work on the job, nor were any other members of the Millwrights employed on it. B. The termination of employment of the Millwrights ' members For some unspecified period prior to the installation of the conveyor at the Brewery, the Machinists had had a collective-bargaining agreement with the Brewery. George Simi, the Machinists' senior business representative, testified that on August 9, 1951, he telephoned the Brewery's chief engineer and spoke to the latter about "working . . . on the conveyor," pointing out that the Machin- ists had a contract with the Brewery; and that he told the chief engineer that he would "send John Wagner [an assistant business representative ] to check on the job." Simi also testified at a later point that during the conversation the chief engineer told him that the job was Acme' s, and that he (Simi) replied that he would send the representative because the Machinists ' contract con- tained "a thirty day clause" ( presumably the witness meant a union-shop provi- sion ). At Simi's direction, Wagner visited the Brewery the same day and spoke to Petersen. According to Petersen , Wagner asked him to which union the men belonged, and he replied that they were members of the Millwrights , whereupon Wagner stated that they "can't do that job" because the Machinists had the right, under a contract with the Brewery , to work on plant equipment . Wagner also asserted, Petersen stated, that "those men must get off the job." According to Petersen's version, he replied that he was without authority to do anything about the matter. Then, Petersen testified, Wagner said that "something has got to be done about It." Petersen responded, according to his testimony, that he would communicate with his office, and Wagner left. At a later point in his testimony, Petersen added that Wagner told him that "something was going to be done about it. The material sum of Wagner's version is that he inquired about, and was informed of, the union affiliation of the employees ; that he was told that Acme was their employer; that he pointed out that the Machinists has a contract with the Brewery, stating that he did not "know how our men" were not installing the equipment ; that he told Petersen, "We have men that do this work, and we would like to do the job as Machinists," to which the foreman replied, "Well, I got Millwrights on this job"; that he (Wagner ) responded, "That 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is neither here nor there. ... We have Machinists that is capable also" ; and that he left after telling Petersen that he would see the foreman again The material essence of Wagner's account is that he did not state that the Millwrights "must get off the job," made no threat of action if they failed to do so, and merely expressed the wish that members of the Machinists be hired for the work. Various facets of the evidence militate against acceptance of Wagner's testimony. First, Simi testified that he sent Wagner to the job site "to check on the conveyor job," but Wagner gave contradictory evidence on the subject, initially stating that Simi had sent him and later denying that such was the case. Second, the sense of Wagner's testimony under cross-examination was that at least a major (if not the only) purpose of his visit was to ascertain whether the Brewery itself was installing the conveyor, in which event, accord- ing to Wagner, under the Machinists' agreement, the Machinists had a right to the employment of its members on the project, or if the employees were not already members, to have them join the Union within 30 days (presumably after the start of their employment). Such a purpose strikes an implausible note. Simi had already been told by the Brewery's chief engineer that Acme was installing the equipment, and it seems strange, even though not impossible, that Wagner should resort to Petersen for information on the subject. More- over, according to Wagner's version on direct examination, Petersen told him almost at the start of the conversation that Acme was doing the work, yet in his version, Wagner nonetheless referred to the Machinists' contract and stated, "I don't know how our men aren't installing the conveyors here," thus indicating a belief that the contract gave the Machinists a claim to the work notwithstanding the fact that the Brewery was not itself installing the equipment. In that regard, it may also be noted that Wagner, having learned from Petersen (if not indeed from Simi as well) that Acme was doing the work, was apparently unimpressed that members of the Millwrights were already employed at the project, for even in his version he met Petersen's statement to that effect with the remark, "That is neither here nor there. . . . We have Machinists that is capable also." In short, I am unconvinced that Wagner, as he stated under cross-examination, referred to the contract only to support a claim that if the Brewery itself was installing the conveyor, the work should be done by members of the Machinists or those employed should become members of the organization within 30 days of their employment, if they did not already belong to it. Third, the undisputed evidence of what Petersen did after Wagner's visit contributes support to the foreman's version. After Wagner's visit, Petersen expressed his view of its consequences to the other employees at the project site. Some of his remarks were made soon after Wagner's departure on August 9, while others were made on the following day, some shortly before the men were laid off. The sum of such statements was that those employed on the job, "would have to get out by tomorrow night" (August 10) or the Machinists would "put a picket line around the brewery," that the Machinists "would have to throw him out before he would get out," that that organization was "going to take the job over and . . . we would have to leave at quitting time" (on August 10), and that the Machinists had "threatened to put a picket line around there if we didn't get off their 9 Wagner testified that he also spoke to Petersen at the plant on the following day. According to Wagner , Petersen told him that "there is no trouble now" and that the job was being shut down because of a shortage of materials . Wagner asserted that he then offered Petersen "capable men" for employment if and when the job resumed . Petersen testified that he could not recall such a conversation . In the light of findings made below, it is unnecessary to determine whether the conversation took place , as a resolution of the question would not materially change the conclusions set out below. ACME EQUIPMENT COMPANY 165 work." ° True, these statements reflect conclusions (such as the assumption that the project site would be picketed)° that Petersen drew from Wagner's visit, but their significance resides not so much in the extent to which they purported to repeat what Wagner said but in the fact that Petersen's course of conduct gives corroborative support to the view that Wagner's visit was something more than a mission "to check on the job." Finally, Petersen, who was called by the General Counsel, appeared to give his testimony with some reluctance. True, he is a member of the Millwrights, but he has been employed by Acme over a considerable period and apparently still performs work as a supervisor for Acme, and upon my observation of the witness, I am unable to conclude that he would knowingly give inaccurate testimony adverse to his employer's interest. On the other hand, Wagner's testimony was infected with self-contradiction and struck an implausible note, and he did not impress me as a factual witness . I credit Petersen's version of the conversation. After Wagner's departure, Petersen telephoned Sheldon and reported the conversation to him. Sheldon said that he would look into the matter. Later that day he came to the Brewery and Petersen related the details of Wagner's visit again, and Sheldon said he would speak to the Brewery management about the situation because he did not know what to do about it10 According to Sheldon, he visited the plant that day in response to a call from the chief engineer, and spoke to the latter before he talked to Petersen. Sheldon testified that the chief engineer told him that Simi had called and laid claim to the work for Machinists' members because of the collective -bargaining agree- ment. Then, Sheldon stated, he telephoned Simi and asked the latter why the Machinists "should want to work," to which Simi replied that the organization had a contract with the Brewery. According to Sheldon, he responded that the contract did not affect Acme, whereupon, Sheldon testified, Simi pointed out that the Machinists had competent men available and expressed a desire "to have some of that work there." It may be noted here that Simi's testimony does not support Sheldon's claim that such a conversation occurred. In describing an- other alleged telephone conversation with Sheldon which took place, according $ See testimony of Steward , Jordan, DoBruck , and Good for evidence of statements made by Petersen after Wagner's visit. In appraising the relevant testimony, I have given consideration to the fact that with respect to some statements attributed to Petersen, no more than one of the employees testified to such remarks, although they were made in the presence of some or all of the others . The overriding facts are that the testimony of the four men impressed me as credible and that Petersen did not contradict it, although he was called as a witness by Acme on the subject of a conversation he had with the men at the time they were laid off. Y Wagner denied that he told Petersen that the site would be picketed, but Petersen's version of the conversation does not quote Wagner as making such a threat . However, it was not unnatural for Petersen, as a foreman and a union member , to conclude from statements that "somethihng has got to be done about it" and "something was going to be done about it" that what Wagner meant was that the Machinists would resort to the conventional practice of picketing. 10 Sheldon denied that Petersen telephoned him concerning Wagner's visit. He stated that he went to the plant that day in response to a telephone call concerning the Machin- ists from the Brewery's chief engineer and spoke to the foreman after conferring with the chief engineer. According to Sheldon, Petersen quoted Wagner as telling him that the Machinists "should have that work, that they have good men available , and it was really Machinists' work." At another point, however, Sheldon testified that he could not recall what Petersen told him. On the question of the telephone call, it seems plausible and credible that a supervisor of Petersen 's limited authority would promptly report to his superior the details of a visit such as Wagner's. With respect to Sheldon 's visit to Petersen, I gathered the impression from Sheldon's demeanor that he was less than frank in quoting Petersen . I credit Petersen's testimony with respect to the telephone call and his conversation with Sheldon at the plant. 250983-vol. 102-53-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Simi, on or about August 16, Simi testified that he had not spoken to Sheldon on any prior occasion. There is no dispute in the evidence that some lack of materials developed at the job site on Friday, August 10. Petersen so testified, and there is some sug- gestion in the testimony by Steward and DoBruck that such was the case. According to Petersen, when the shortage developed on Friday, he telephoned Sheldon that "we had to get some more material up on the job because I was stuck." Petersen testified that Sheldon called him back and told him that ma- terials "wouldn't be available for a few days" and that "we are going to try to get it." Petersen, according to his testimony, then informed Sheldon that "I can't go any further." Sheldon's version does not quite accord with Petersen's, and there is also some self-contradiction in Sheldon's testimony. At one point, Sheldon testified that Petersen first reported the materials shortage on Thurs- day; that he told the foreman that he would take the matter up with the project engineer of Standard Conveyor Company ; that that concern was doing its best to supply the materials, but he did not know when It would be delivered ; that he talked to Petersen about the matter again on Friday; that Petersen said that he would be unable to proceed "if I can't get any more"; and that he (Sheldon) replied that "if It isn't available I don't know what [you] can do." However, at another place in his testimony, Sheldon asserted that the first he knew of the materials shortage was when Petersen came to Acme's office after the close of business on Friday and reported that he had "had to close down the job because" of a shortage of materials. Then Sheldon stated that because of the lateness of the hour he could not have spoken to the project engineer prior to the following Monday. The disparities in the respective versions of Petersen and Sheldon, and the self-contradiction in the testimony of the latter, will be discussed at a later point. Petersen told the employees on Friday of his intention to shut the job down. Before noon of that day be told Jordan that he "was going to close the job down that evening," and later that day, about an hour before quitting time, the fore- man remarked to Jordan that "the Machinists' agent had been . . . there and was going to take the job over and . . . we would have to leave at quitting time." At quitting time, Petersen told DoBruck that the job was "finished as far as he [Ietersen] was concerned," that "there was some trouble with the Machinists," and that Acme had run out of materials, "too." Petersen also stated to Good that "he would have to lay us off because they didn't have this steel." Petersen shut down the job, laid off the other employees, and gave them their paychecks at or about quitting time on August 10. He told Steward that "if be got things cleared up, and got some more steel, . . . he wanted us back." The foreman also told Good and Jordan that he would communicate with them if "anything" developed," and both these employees and Steward gave Petersen their telephone numbers. While paying DoBruck, Petersen asked the former to work with him on another job for Acme the following week. DoBruck accepted Petersen's offer and worked with the foreman much of the next week. About the middle of the week, DoBruck asked Petersen about the prospects of returning to the Brewery job, and the foreman replied that he did not know, expressing the thought, as DoBruck put it, that Acme "was going to straighten that job out" by getting "an agreement with the Machinists." Good also made an inquiry of Petersen about the same time, calling the foreman on n Petersen denied that he told the men that he "would rehire them for that job." However, it may be noted that they did not quote him in those terms, nor did he deny that he expressed himself in the language they respectively attribute to him. Moreover, he testified that he told them that he "would call them back in case I needed them." ACME EQUIPMENT COMPANY 167 the telephone and asking him if materials had become available for the job. Petersen stated that nothing bad "developed yet," but if it did, he would notify Good. Toward the end of that week, DoBruck renewed his inquiry, and Peter- sen stated that "the Millwrights wouldn't work on it [the project] any more, the Machinists had taken over." According to Sheldon, Simi telephoned him on Friday, August 17, inquired concerning the status of the project, and stated that he had competent men available for the work. Sheldon testified that he told Simi that he was un- familiar with the status of the job and "would have to check" ; that he then discussed the availability of materials with Standard's project engineer who told him that some materials would be delivered to the Brewery the following Monday ; that Simi called again, and he informed the Machinists' representative that materials would be available on Monday, whereupon Simi renewed his offer to furnish men for the job ; and that he (Sheldon) accepted the offer, requesting Simi "to send some men over to the job Monday morning." " On August 17, Sheldon told Petersen that work would be resumed on the project the following Monday, that Acme "would have to use Machinists on the job," and that "there were going to be some men on the job when [Petersen] got there." Petersen pointed out that if Machinists' members were employed, Petersen would be unable to work with tools, and Sheldon replied that "we want you as a supervisor there anyway." " Petersen appeared at the job site the morning of August 20. Materials had been delivered, and three members of the Machinists reported for work. Work was resumed on the project that morning. One of the Machinists, a man named Renner, served as a foreman (also re- ferred to as a leaderman in the record) under Petersen's supervision, although when the Millwrights were employed on the job, there had been no other super- visor but Petersen. Renner hired several additional men a few days later, se- curing them from the Machinists. The job was completed in approximately 6 weeks. C. Concluding findings The nub of the Respondent 's position is that the Brewery project closed for lack of materials and that when work resumed, Acme simply availed itself of an offer by the Machinists to supply employees from among its members. It may be pointed out that even if Acme was short of materials during the week fol- lowing the suspension of work , that circumstance is not decisive of the issue of whether the Respondents committed unfair labor practices. The failure to recall the four members of the Millwrights could still have been unlawful. Passing that question for the time being, it is appropriate to note some infirmities in the evidence bearing on the shortage of materials. Assuming that some short- age of materials developed on August 10 at the job site itself, that does not necessarily mean that Acme or Standard was not equipped to keep the project supplied either on that day or during the following week, nor does it mean that the shutdown occurred and the employees were terminated because no supplies were available for the resumption of work on Monday, August 13, the next "Simi described a substantially similar conversation with Sheldon , but was uncertain of the date , expressing the belief that the conversation occurred on or about August 16. 'e Sheldon denied that Petersen said that he would not be able to use tools on the job. However , Sheldon 's version of the conversation appeared to be less circumstantially de- tailed than Petersen 's. The way Sheldon put it was that "we talked about it, and I told him that the materials were going to be there , and that some men would be there also." Moreover, he appears to have been under the erroneous impression that Petersen does not use tools on any of the projects , and he admitted that he had no personal knowledge whether Petersen had done so on the Brewery job. I credit Petersen 's version of the conversation. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business day, or soon thereafter . The undisputed evidence of what Petersen told some of the employees on the day of the shutdown and of his conversations with DoBruck during the ensuing week suggests that suspension of work on the project was due at least as much to the pressure exerted upon Acme by the Machinists as by a shortage of supplies . Be that as it may , the claim that materials were unavailable to keep the job supplied rests on Sheldon 's testimony and, although the existence of such a shortage is not decisive of the allegations of the complaint , it is appropriate to examine various relevant facets of the evidence bearing on the alleged supply difficulties. Sheldon admitted that he does not "normally hire foremen to start a project where there is going to be a shortage of material ." Moreover, he was admittedly informed by Standard's project engineer shortly before the start of the Brewery job that, as Sheldon put it, "material would be sufficiently fabricated that we just could go right ahead with it," although he also denied that he was assured by Standard that it had "sufficient fabricated materials to install the job at that time." Sheldon explained that the fabricating facilities of Standard's shop were busy with other orders and that "we just hoped" when the Brewery project began that Acme would "be able to carry it through without any interruption." Al- though Petersen stated at the hearing that he anticipated (the source of his anticipation does not appear ) at the start of the project that "we might run short of materials," he estimated before work began that the job would last 4 or 5 weeks and he told some of the other employees in effect that it would last a sub- stantial number of weeks. Even if one assumes some supposition by Acme that work on the project might be interrupted at some point, it seems strange that a shortage of materials should suddenly materialize so soon after the job began, particularly if one bears in mind Sheldon's conversation with the project engi- neer only a short while before work on the project started , the fact that a foreman and a crew were assembled, and that some of the employees were given reason to believe that the project would last a substantial period. It is also well to note some other implausible features of the Respondent Com- pany's evidence , certain disparities between the testimony of Petersen and that of Sheldon , and elements of self-contradiction in Sheldon 's evidence. Petersen's testimony does not reveal who, if anybody, told him to lay off the employees and close down the operation. Sheldon specifically denied that he instructed Petersen to do so. Petersen stated that he reported the supply shortage to Sheldon by telephone on Friday, August 10, that the latter called him later that day and told him that materials "wouldn't be available for a few days," and that he then told Sheldon that he would be unable to proceed with the work . Sheldon asserted at one point that Petersen reported the shortage on Thursday and that he told the foreman then that he would discuss the matter with Standard 's project engineer, while other portions of Sheldon 's testimony are to the effect that he did not learn of the shortage and of the shutdown until about 5 p. m. on Friday when Petersen returned to Acme's office from the Brewery . Petersen had already laid off the other employees , paid them , and shut the job down . Now, Sheldon's testimony indicates that Standard's project engineer was the key source of information concerning the availability of supplies , and it is only reasonable to suppose that he would make some determination concerning the supply situation before Peter- sen, a subordinate employee, made a decision to shut the job down. Giving a somewhat liberal interpretation to Petersen 's version of his conversations with Sheldon and the latter's claim at one point that the foreman reported the shortage on Thursday, one may perhaps draw the inference that Sheldon discussed the supply situation with the project engineer after Petersen 's alleged report , learned that materials were in short supply , and then conveyed the information to Peter- ACME EQUIPMENT COMPANY 169 sen before the foreman suspended work at the Brewery. However, Sheldon's contradictory assertion that he did not learn about the shortage until after the shutdown occurred does not support such an inference and runs counter to it, for Sheldon also testified that after Petersen reported the supply difficulty to him at the close of business on Friday, because of the lateness of the hour and the intervening weekend, the project engineer was unavailable for a discussion of the supply problem prior to the following Monday." It is apparent not only that Sheldon's testimony contains self-contradiction but that at least some phases of it add up to the implausible result that Petersen, a working foreman of sub- ordinate authority with limited powers of discharge,'b took it upon himself to lay off employees, pay them, and close down a job because of a supply shortage, and all this without prior clearance with his superior who in turn had not previously consulted his supply sources to determine whether it was necessary to suspend operations. Moreover, it should be noted that Sheldon admitted that he had no personal knowledge concerning the availability of materials for the continuation of the project at any time during the week of the shutdown. Finally, to credit Sheldon, one must assume that two coincidences occurred : First, that the supply difficulty actually did develop almost immediately after Wagner's visit, and sec- ond, that materials became available again when Simi offered ( for the first time, according to his testimony, but not Sheldon's)1° to supply members of the Ma- chinists for employment upon resumption of the job. In the light of what Wagner actually said to Petersen on August 9, the indicated implausibilities to be found in the Respondent Company's evidence , and Sheldon's self-contradictions, the claim that two such coincidences occurred imposes a strain upon one's cre- dulity. In sum, bearing in mind that Sheldon admittedly had no personal knowl- edge whether the material with which the job was resumed was available during the week of its suspension, even though there is no direct contradiction of his claim of a supply shortage, the implausibility and self-contradiction imbedded in his testimony make the claim quite unconvincing. In any event, even if it be assumed that the Brewery project was shut down because of a shortage of materials, I cannot view it as anything but a temporary suspension of the employees' work, particularly as Petersen, the man who had hired them, admittedly told them that he "would call them back in case I needed them." In that setting, if the employees were not recalled because of their union affiliation , to hold that Acme's failure to recall them was not a discharge is mere word-jousting rather than the effectuation of statutory policy. 14 Careful analysis of Sheldon 's testimony raises some quest ton concerning his alleged discussions of the availability of supplies with the project engineer between the time of the shutdown and his alleged later conversation with Simi. When it appeared at one point in Sheldon's testimony that he did not learn of the alleged shortage from Petersen on Friday until after the job was shut down and that it was too late to discuss the matter prior to Monday with the project engineer, Sheldon was asked when he did talk to the engineer about the availability of materials . He replied, "I might have talked to him Monday, but I really can 't swear to it." However, Sheldon later expressed the belief that he talked to the engineer on Monday and then proceeded to quote the latter in explicit terms that "with the condition of the shop there can't be anything fabricated, or anything finished, that will do any good." Sheldon then stated that he did not thereafter discuss the matter with the engineer until after Simi called toward the end of the week. If Sheldon did not in fact talk to the engineer on Monday , the first available opportunity after the shutdown according to his testimony , his failure to do so contributes to the conclusion that something other than supply difficulties caused the shutdown. 15 Petersen testified that his power to discharge is limited . As an example of the occasions when he exercises the power , he stated that he does so "in case of emergency" as when "I am out of town , and there is nobody to make a decision." 19 As noted earlier , Sheldon claims that he spoke to Simi on August 9, before the shut- down, and that Simi offered to furnish men for the job. Simi, on the other hand , asserts, in effect, that he made the offer during the period of the shutdown . Sheldon also testified to that conversation. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The sum of the credible evidence is that the employees were discharged as a result of unlawful pressure applied by the Machinists. Sheldon stated that it "didn't occur" to him that a refusal to employ members of the Machinists might result in "some labor difficulty" at the Brewery, and he asserted that it did not occur to him that if he continued to employ the Millwrights, "the job might be stopped, and there might be some monetary loss if it were stopped." Perhaps the conversation (conversations, according to Sheldon) between Simi and Sheldon did have the innocent content which they profess. Both are affiliated with interests which have a common goal in this proceeding, and their versions of what they talked about are not readily susceptible to refutation. The more reliable guide to decision is the whole framework of events, and not the least significant of these was Wagner's visit. While Wagner did not in terms threaten to picket the job site or describe what would happen unless members of the Machinists were substituted for those on the job, the coercive implications of his visit must be plain to anyone with a sense of industrial realities, particularly if it is borne in mind that members of the Machinists were at work for the Brewery in other parts of the plant. Thus I find it difficult to believe Sheldon's a posteriori description of his state of mind. But the credited evidence of what Wagner said is not the only guidepost to a resolution of the issues. A substantial body of undisputed evidence bears additional witness to the real reason for the substitution of employees on the project. As far as the record discloses, with one minor exception," prior to the Brewery job, Acme had always employed members of the Millwrights in its construction work. It has pursued that policy since the completion of the project, and has not since then hired members of the Machinists. There is no dispute that it was, and still is, Petersen's function to hire the men he supervises, at least when he is available to do so. That policy was followed at the inception of the very project involved in this proceeding. Yet, after Wagner's visit, the policy was suddenly abandoned for the duration of the Brewery job, although the work of the Millwrights' members was admit- tedly satisfactory ; DoBruck had previously worked for Acme "for quite a while" and was actually employed by Acme during most of the week of the suspension of the Brewery job; all of the employees had signified a wish to continue working on the project, two of them, Good and DoBruck, on more than one occasion ; and no question is raised that the men were available upon call for resumption of the work. Moreover, no claim can seriously be made, if indeed it is advanced, that Petersen was unavailable to follow his normal hiring practices for the resumption of the work. He resides in San Francisco and his address and telephone number were in Sheldon's possession. He was employed by Acme for almost the entire week that work at the Brewery was suspended, and it is abundantly clear that he was available to recall the four employees or to hire others through the Millwrights' office. Sheldon admittedly made no effort to communicate with him for either purpose. The record is silent on the question whether hiring authority was withdrawn from Petersen on the occasion in question because of his longstanding membership in the Millwrights, but it is quite clear that withdrawal of such authority was a matter of deliberate policy. Sheldon was asked at the hearing why he did not follow the customary policy of hiring help through the Millwrights' office for the resumption of the Brewery project, and he offered the explanation : "I don't know. It was just that the men 17 Some months before the Brewery project, Acme had employed two Machinists' mem- bers on another job at the Brewery. According to Sheldon, Simi had learned that the work was to be performed and had solicited the work for members of his union. However, no Millwrights' members had previously been employed on that job and no question was involved of taking employment away front such employees. ACME EQUIPMENT COMPANY 171 [Machinists' members] were available. . . ." However, the Millwrights' mem- bers were at least equally "available"; the quality of their work had already been tested and found to be satisfactory; they had expressed their willingness to continue on the job ; had not the substitution occurred, Petersen's work would not have been restricted to supervisory functions, but he would have been able to continue working with his tools had he so desired ; and judging by the super- visory practices in effect while the Millwrights' members were at work at the Brewery, there is no reason to believe that, had they been recalled, it would have been necessary to have two supervisors to direct the work of the small crew required for the project (a total of six men, in addition to Petersen, were ulti- mately employed on the job).1s It would seem to be quite illogical for Acme to ignore these factors, abandon its normal policy of hiring individuals belonging to the Millwrights, and substitute for the four men employed on the Brewery project from its inception a group of employees with whose qualities Acme was unfamiliar, all simply because Simi, a man Sheldon had apparently never met, called the latter and said he had men "available." The reason given for the substitution by Sheldon is implausible, and I am convinced that it is not true. Sheldon himself summarized the real reason aptly when he told Petersen, accord- ing to the credited evidence, on the Friday preceding the resumption of the work that "we would have to have Machinists on the job." Viewing the record as a whole, I find that the Machinists, in violation of Section 8 (b) (2) of the Act, demanded and caused the discharge of Jordan, Steward, DoBruck, and Good because they were members of the Millwrights and not of the Machinists; that the Machinists thereby violated Section 8 (b) (1) (A) because its conduct restrained and coerced employees in the exercise of rights guaranteed to them by Section 7; that, in contravention of Section 8 (a) (3), Acme discharged the four employees because they were members of the Millwrights and not of the Machinists ; and that Acme thereby violated Section 8 (a) (1) because its conduct interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The respective activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Company described in section I, above, have a close, intimate, and substantial relation to trade, traf- fic, 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 It has been found that the Respondent Company has engaged in unfair labor practices violative of Section 8 (a) (1) and 8 (a) (3) of the Act, and that the Respondent Union has engaged in unfair labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the said statute. In view of the findings, I shall recommend that the said Respondents cease and desist from their respective un- fair labor practices and take certain affirmative action designed to effectuate the policies of the Act. The record discloses that it is the practice of the Respondent Company to hire employees such as the four discharged members of the Millwrights for work ie According to Sheldon , Acme customarily employs a foreman or leaderman under Petersen's supervision even when members of the Millwrights are employed. The fact remains, however, that such was not the case while the Millwrights' members were employed at the Brewery project. Moreover, Petersen testified that he had not planned to hire a foreman. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on particular projects and that the project at the Brewery has been completed. Accordingly, I shall dispense with a recommendation that the discharged indi- viduals be reinstated to their former or substantially equivalent positions. As it has been found that the Respondent Union caused the Respondent Com- pany to discriminate against Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good by discharging them in violation of Section 8 (a) (3), and that the Respondent Company by such discharge discriminated in regard to the tenure of employment of the said employees, I shall recommend that the Re- spondent Company and Respondent Union jointly and severally make each of the said employees whole for any loss of pay he may have suffered by reason of the Respondent Company's discrimination against him , by payment to him of a sum of money equal to the amount of wages he would have earned from employ- ment on the project at the Brewery between August 10, 1951, and the date he would have completed such employment but for the discrimination against him. Loss of pay for each employee will be computed on the basis of each separate quarter or portion thereof during the period from the date of discharge of such employee to the date he would have completed his employment. The quarterly periods shall begin with the respective first days of July and October (the Brewery job was begun in August 1951 and completed in October 1951). Loss of pay shall be determined by deducting from a sum equal to that which the employee normally would have earned in each such quarter or portion thereof, his net earnings," if any, in other employment during that period. Earnings in one quarter shall have no effect upon the back-pay liability for any other quarter.30 Both Respondents will be required, upon reasonable request, to make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. As it has been found that the Respondent Company, in violation of Section 8 (a) (1) of the Act, has interfered with, restrained, and coerced employees in the exercise by them of rights guaranteed by Section 7 of the said statute, and that the Respondent Union, in violation of Section 8 (b) (1) (A), has restrained and coerced employees in the exercise of such rights, I shall recommend that the Respondent Company and the Respondent Union be directed to cease and desist In the future from committing their said respective violations of the Act. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. International Association of Machinists, Local Lodge 68, and Millwrights Union Local 102, United Brotherhood of Carpenters & Joiners of America, AFL, are, and have been at all times material to this proceeding, labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good, Frank P. Slater, an individual doing business as Acme Equipment Company, has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in their exercise of rights guaranteed to them by Section 7 of the Act, Frank P. Slater, an Individual doing business as Acme Equipment Company, has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 19 See Crossett Lumber Company, 8 NLRB 440, for the applicable construction of "net earnings." 20 P. W. Woolworth Company, 90 NLRB 289. ACME BRICK COMPANY 173 4. By causing Frank P. Slater, an individual doing business as Acme Equip- ment Company, to discriminate in regard to the tenure of employment of Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good, in violation of Section 8 (a) (3), International Association of Machinists, Local Lodge 68, has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing persons employed by Frank P. Slater, an Individual doing business as Acme Equipment Company, in their exercise of rights guaranteed to them by Section 7 of the Act, International Association of Machinists, Local Lodge 68, has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] ACME BRICK COMPANY and LOCAL 602, UNITED BRICK AND CLAY WORK- ERs of AMERICA, AFL. Cases Nos. 32-CA-130 and 32-CA-233. January 13,1952 Decision and Order On June 4, 1952, Trial Examiner J. J. Fitzpatrick issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modiiications.z In agreement with the Trial Examiner, and for the reasons detailed in the Intermediate Report, we find that the Respondent refused to bargain with the Union, in violation of Section 8 (a) (5) of the Act. However, unlike the Trial Examiner, we do not find that the Respond- 'Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 2 We note and correct the following minor inaccuracy in the Intermediate Report, which does not affect the validity of the Trial Examiner's ultimate conclusions nor our con- currence therein : The Union asked the Respondent for bargaining meetings in July 1951, not in July 1950, as stated in section III, B, (1) of the Intermediate Report. 102 NLRB No. 32.