Thomas Rigging Co.

THOMAS RIGGING COMPANY 65 fined to the technical and clerical employees of the Employer not presently represented by the Petitioner is not warranted. We do find, however, that those employees have a sufficient community of interest with the office, clerical, and technical employees in the estab- lished unit now represented by the Petitioner to render appropriate their inclusion in that unit. Accordingly, we find that an exception is warranted in this case to the Board's general practice of not in- cluding technical employees in the same unit with clerical employees where any party objects to such grouping,8 and we shall accord all the employees in the time-study and time-standards departments an op- portunity to determine through an election whether or not they desire to be added to the existing unit of office, clerical, and technical employees. We shall direct an election among all the employees employed in the time-study and time-standards departments at the Employer's Cleve- land Mill Division, Euclid, Ohio, excluding all supervisors as defined in the Act. If a majority of these employees cast their ballots for the Petitioner, they will be taken to have indicated their desire to be included in the office, clerical, and technical unit currently represented by the Petitioner, and the Regional Director shall issue a certificate of results of election to such effect. [Text of Direction of Election omitted from publication in this volume.] 8 See Bethlehem Steel Company, Shipbuilding Division, 97 NLRB 1072. THOMAS RIGGING COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS CARPENTERS UNION, LOCAL No. 642, UNITED BROTHERHOOD OF CAR- PENTERS & JOINERS OF AMERICA, AFL, AND HARRY CECIL , BUSINESS AGENT OF LOCAL No. 642 and INTERNATIONAL ASSOCIATION OF MA- CHINISTS. Cases Nos. 2O-CA-640 and 2O-CB-222. January 8,1953 Decision and Order On June 12, 1952, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions to the Intermediate Report and supporting briefs were separately filed on behalf of the Respondent Company, and on behalf of the Respondent 102 NLRB No. 1. % 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and Respondent Cecil, jointly. The Respondent Company's request for oral argument is hereby denied, as the record and the briefs, in our opinion, adequately present the issues and the positions of the parties. 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 Inter- mediate Report, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications? 1. With respect to the alleged discriminatory refusal to hire Gon- zal ves, Renner, Young, and Glen, we agree with the Trial Examiner that the Respondents committed the violations alleged in the com- plaint. The credited testimony, in brief, shows the following : All four of these complainants within 1 month after the Rheem job was begun made application for employment with Burgman, the Re- spondent Company's authorized hiring agent. All four revealed in their separate interviews with Burgman that they were machinists and members of the International Association of Machinists, the charging party in these cases, herein called the IAM. Burgman indi- cated to Gonzalves and to Renner that he desired their immediate services; to Young that there would be "more jobs at the end of the week"; and to Glen to leave his name, that he would call him when something came up. But he specifically told Gonzalves, Renner, and Young that they would need clearance from Respondent Cecil, the business agent of the Respondent Union, and also advised Gonzalves that he "would have to join the Millwrights' Local." In Glen's case, having first ascertained that he belonged to the IAM, Burgman in- formed Glen that "all of my men are millwrights." 3 Gonzalves and Renner each proceeded to see Respondent Cecil at the office of the Respondent Union. Renner told Cecil that Burgman 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its power in connection with these cases to a three-member panel [Members Houston, Murdock , and Styles]. 2 Without affecting our agreement with the Trial Examiner , we note the following minor corrections and clarifications of the Intermediate Report: ( 1) There is no showing in the record that Burgman was a member of the Respondent Union . Rather , it appears that he was a member of "Millwrights Local Union No. 102, of the Carpenters Union." (2) In "The Remedy," the provision should read : The liability of Respondent Union and Respondent Cecil for further back pay shall terminate 5 days after they notify Respondent Company that they have no objections to the employment of the individuals found by the Board to have been discriminated against. $ On this evidence alone, it is clear , and we find , that the Respondent Company violated Section 8 ( a) (3) of the Act by denying employment to the four named complainants for express discriminatory reasons. whether or not vacancies were immediately available to the applicants is not material . They were not obliged to continue to make the useless gesture of application to the Respondent Company. See, e. g., Darted Hamm Drayage Co., 84 NLRB 459, enfd. 185 F. 2d 1020 (C. A. 5). N. L. R. B. v. Arthur G. McKee, 196 F. 2d 636 (C. A. 5). THOMAS RIGGING COMPANY 67 wanted him on the job and that he was sent to get a clearance. Gon- zalves similarly requested clearance to work for Burgman. For his part, Respondent Cecil did not disavow that clearances were neces- sary and refused to issue the clearances, indicating, inter alia, that ``it will cost you $100 for initiation to go to work"; that "he had no order from Burgman for men, but if he had, he had three men that were out of employment that would go on the job before any one else"; and that if "the fellows heard out there that you was an ex-machinist, they are liable to walk off the job." It is clear, in any event, that the issuance of a clearance by the Respondent Union was predicated upon membership in the "Millwrights' Union." Significantly, the record shows that all of the millwrights in the employ of the Respondent Company were members of some local of United Brotherhood of Car- penters & Joiners of America, AFL, the parent of the Respondent Union. From all the evidence adduced in these cases, including Cecil's fail- ure to disavow the implicit need for clearance in order to obtain em- ployment with the Respondent Company, we believe with the Trial Examiner that the reasonable inference to be drawn is that an under- standing existed between the Respondent Company and the Respond- ent Union to the effect that no employee would be hired without a clearance from the Respondent Union.' The cases cited by the Trial Examiner support this conclusion .5 Accordingly, we find that Gon- zalves, Renner, Young, and Glen were denied employment as a direct result of the Respondent Company's unlawful arrangement for clear- ances by the Respondent Union, thus encouraging membership in the Respondent Union and discouraging membership in the IAM, and that the Respondent Company thereby discriminated against these individuals in violation of Section 8 (a) (1) and (3) of the Act. * The record does show the existence of a currently effective master agreement between the Associated General Contractors of America, Inc., and the United Brotherhood of Carpenters and Joiners of America , for 42 northern California counties . Pursuant to such agreement, the Respondent Company undertook to recognize the Respondent Union as the collective bargaining representative of Its employees . However, a union-shop provision In the contract which was conditioned upon appropriate authorization by the Board under Section 9 (e) of the Act was not effective during the period In question . As noted In the Intermediate Report, this contract was not specifically attacked in the complaint as con- stituting any violation of the Act ; and the Trial Examiner found no such violation. We do not disturb this finding, particularly as no exceptions were filed by the General Counsel. However, there appears In the contract a clause ( article IV (D) ), set forth below, which has significance In relation to the question of the existence of a clearance arrangement between these parties : As to any employee who becomes a member of or applies for membership in the Union, it is agreed that the appropriate Local Union having jurisdiction unit issue job clear- ance cards to any member in good standing in any local of the Union designated by any individual employer, provided such employer does not designate more than twenty-five percent ( 25%) of such help required on any project . [Emphasis added.] E. g., Consolidated Western Steel Corporation, 94 NLRB 1590 ; General Electric Com- pany, 94 NLRB 12,60 ; Arthur G. McKee Company, 94 NLRB 899; Swinerton d Walberg Company, 94 NLRB 1079. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Likewise, we find that the Respondent Union and Respondent Cecil, as party to this unlawful understanding, attempted to cause the Re- spondent Company to discriminate against employees in violation of Section 8 (b) (2) of the Act. Furthermore, although the Respond- ent Union did not specifically request that the Respondent Company refuse to hire Gonzalves, Renner, Young, and Glen, it was, as we have found, responsible for the discriminatory hiring arrangement, and therefore, in our opinion, responsible for its reasonably to be antici- pated results." Consequently, we reach the conclusion, as did the Trial Examiner, that the Respondent Union and Respondent Cecil cau8ed the Respondent Company to discriminate against Gonzalves, Renner, Young, and Glen, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 2. However, as to Kershner, we disagree with the Trial Examiner that the evidence warrants the finding that he, in the same manner as the other complainants, was discriminated against by the Respond- ents. In his finding, the Trial Examiner specifically relied upon the fact that the Respondent Company ascertained from Kershner his union affiliation. But the sole pertinent evidence, as it relates to Kershner, shows that when this complainant approached Burgman for a job, Burgman said he would need men later, that he would give Kershner a call, and for Kershner to leave his name at the time shack. Assuming that at the time shack Timekeeper Jacobus did ask Kershner whether he belonged to the "Millwrights' Union," which the Trial Examiner did not specifically find,7 it was not established that Jacobus was a supervisor or that he had any authority to bind the Respondent Company in this respect 8 While we are not free of doubt whether there was a violation of the Act in regard to Kershner, particularly in the light of the unlawful arrangement for clearance of employees by the Respondent Union, and all the surrounding circumstances in these cases, we cannot find, on the paucity of evidence before us, that the Respondent Company was aware of Kershner's union affiliation, or that it was at all influ- enced not to employ Kershner by the fact that he possessed no clear- ance from the Respondent Union. We shall, therefore, dismiss the complaint as to Kershner. e see Consolidated Western Steel Corporation, supra; Del E. Webb Construction Com- pany, 95 NLRB 75, enf. den. on other grounds, 196 F. 2d 841 ( C. A. 8). Complainants Young and Glen did not attempt to secure a clearance from Respondent Cecil, as did Gonzalves and Renner. But we find this was unnecessary in view of the evidence of the discriminatory hiring arrangement for which, as we hold, the Respondent Union is properly responsible. 4 The Trial Examiner found that Jacobus asked Kershner "either if he belonged to the Millwrights or was a millwright." 9 See, e. g., M. W Kellogg Company, 94 NLRB 526, 530, in which the Board held that the statements of plant guards for employment could not be imputed to the employer, in the absence of authorization or ratification of the employer. THOMAS RIGGING COMPANY Order 69 Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that: I. Thomas Rigging Company, Emeryville, California, its officers, agents, successors, and assigns shall : A. Cease and desist from : 1. Discouraging membership in International Association of Ma- chinists and encouraging membership in Carpenters Union, Local No. 642, United Brotherhood of Carpenters & Joiners of America, AFL, or in any other labor organization of its employees or applicants for employment, by refusing to employ any qualified applicant for em- ployment, or by discriminating in any manner in regard to hire or tenure of employment or any term or condition thereof, except to the extent permitted by Section 8 (a) (3) of the Act. 2. In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist International Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or the right to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement authorized under Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 1. Offer to Manuel Gonzalves, Rex Renner, Leroy P. Young, and Philip Glen immediate and full employment and, jointly and severally with Respondent Union and Respondent Cecil, make them whole for any loss of pay suffered as a result of the discrimination against them, as provided in the section of the Intermediate Report entitled "The Remedy." 2. Upon request, make available to the Board or its agents for examination or copying all payroll and other records necessary to analyze the amounts of back pay due. 3. Post at its principal office and at its construction office at the Rheem plant, copies of the notice attached hereto as appendix A.9 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Company's representative, be posted by the Respondent Company immediately In the event that this Order or any Order herein is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 250983-vol. 102-53 6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered,, defaced, or covered by any other material. 4. 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. II. Respondent Union, Carpenters Union, Local No. 642, United. Brotherhood of Carpenters & Joiners of America, AFL, its officers, representatives, and agents, and Respondent Harry Cecil, business agent of Respondent Union, shall : A. Cease and desist from : 1. Causing or attempting to cause Thomas Rigging Company, its officers, agents, successors, or assigns, to refuse to employ any qualified person or otherwise discriminate against its employees or applicants for employment in violation of Section 8 (a) (3) of the Act. 2. In any manner restraining or coercing the employees of or ap- plicants for employment with Thomas Rigging Company in the exercise of their right to engage in or refrain from engaging in any or all of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by a union-security agree- ment authorized under Section 8 (a) (3) of the Act. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 1. Notify Respondent Company, in writing, and furnish copies to the individuals named, that they have no objections to the employment of Manuel Gonzalves, Rex Renner, Leroy P. Young, and Philip B. Glen and that they request said Company to offer the aforenamed four employees immediate employment. 2. Jointly and severally with Respondent Company, make whole Manuel Gonzalves, Rex Renner, Leroy P. Young, and Philip B. Glen for any loss of pay suffered by reason of the discrimination against them, as provided in the section of the Intermediate Report entitled "The Remedy." 3. Post immediately in conspicuous places in its business office and at all places where notices to its members are customarily posted, copies of the notice attached hereto as appendix B.'10 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by Respondent Cecil and Respondent Union's representative, be posted by them immediately upon receipt 10In the event that this Order or any Order herein is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." THOMAS RIGGING COMPANY 71 thereof and maintained for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent Union and Respondent Cecil to insure that said notices are not altered, de- faced, or covered by any other material. (4) Mail to the Regional Director for the Twentieth Region signed copies of the notice attached hereto as appendix B for posting, Re- spondent Company willing, at its offices at the Rheem construction project in places where notices to employees of Respondent Company are customarily posted. (5) Notify the Regional Director for the Twentieth 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 that the Respondents discriminated against John Kershner. MEMBER MURDOCK, dissenting in part : I cannot agree with my colleagues that there is sufficient evidence here to sustain the allegation of the complaint that the Respondent Union attempted to and did cause the Respondent Company to engage in discrimination, thereby violating Section 8 (b) (2) of the Act. Concededly, the record is such that the entire case against the Union must turn upon the question of whether an agreement existed between the Union and the Company requiring the clearance of employees by the Union. My colleagues find such an agreement, which they describe as an "understanding." But I cannot find on this record that the General Counsel has sustained the burden of establishing the existence of such an agreement or understanding. No testimony as to any actual agreement, written or oral, reflecting the alleged clear- ance procedure between these parties, was introduced in the record.11 Nor was there evidenced a discriminatory practice of the Union clear- ing employees for the Company, from which there might be inferred the existence of an oral agreement 12 The sole evidence bearing on this issue binding upon the Union consisted of the testimony of the complainants Gonzalves and Renner with respect to their conversation with Respondent Cecil of the Union, whom they approached to obtain clearance for employment with the Company. Their credited version of what Cecil said revealed only that Cecil refused to issue clearances for the job to any persons other than members of his own union; and that he said nothing to refute the existence of a clearance arrangement with the Company. This testimony, in my judgment, cannot be con- 33 The contract clause recited in footnote 4 of the majority opinion, as noted therein, was not alleged by the General Counsel nor found by the Trial Examiner as constituting any basis for the finding of a violation of the Act . I disagree with my colleagues , there- fore, that it can be accorded any "significance." 12 Cf. Consolidated Western Steel Company, supra. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strued as showing or affirming the existence of the alleged agreement. The evidence that the Respondent Company did require of certain of the complainants who applied for work clearance from the Re- spondent Union, standing alone, is insufficient to establish the exist- ence of the agreement, or bind the Union. An employer may con- ceivably unilaterally elect as a matter of policy to do his hiring through and require clearances from a union. That, of course, con- stitutes a discrimination as found here. But the mere fact that he does so, plus the fact that the union refuses to grant a clearance to a nonmember, does not add up to an agreement between the employer and the union on a discriminatory hiring procedure, so as to constitute a basis for concluding that the union has "caused" or "attempted to cause" discrimination. At most such facts may give rise to suspicion that an actual agreement exists. But as often recognized, suspicion is not sufficient basis on which to predicate an unfair labor practice finding. As I am unable to find on this record that the Union caused or attempted to cause the Company to discriminate, I would dismiss the complaint against the Union in Case No. 20-CB-222. 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, we hereby notify you that : WE WILL NOT discourage membership in INTERNATIONAL ASSO- CIATION OF MACHINISTS or encourage membership in CARPENTERS UNION, LOCAL No. 642, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL, or in any other labor organization, of our employees or applicants for employment, by refusing to em- ploy qualified applicants for employment, or by discriminating in any other manner in regard to their hire or tenure of employ- ment, or any term or condition thereof, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce applicants for employment or our employees, in the exer- cise of the right to self-organization, to form, join, or assist INTERNATIONAL ASSOCIATION OF MACHINISTS or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring THOMAS RIGGING COMPANY 73 membership in a labor organization, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the individuals named below immediate and full employment in the positions previously applied for, or in positions substantially equivalent thereto, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as the result of our discrimina- tion against them. Manuel Gonzalves Philip B. Glen Rex Renner Leroy P. Young All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named labor organiza- tions, or any other labor organization, except to the extent that such right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act. THOMAS RIGGING COMPANY, Employer. Dated-------------------- By------------------------------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE To ALL MEMBERS OF CARPENTERS UNION, LOCAL No. 642, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT WITH THOMAS RIGGING 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, we hereby notify you that: WE WILL NOT cause or attempt to cause THOMAS RIGGING COM- PANY, its officers, agents, successors, or assigns, to refuse to employ any qualified applicant for employment, or otherwise discrimi- nate against any of its employees or applicants for employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any manner restrain or coerce employees of, or applicants for employment with, THOMAS RIGGING COMPANY, its successors or assigns, in the exercise of their right to engage in or refrain from engaging in any or all of the concerted activities guaranteed in Section 7 of the Act, except to the extent permitted by an agreement requiring membership in a labor organization, as authorized in Section 8 (a) (3) of the Act. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE wrLL make whole the persons named below for any loss of pay suffered as a result of the discrimination against them. Manuel Gonzalves Philip B. Glen Rex Renner Leroy P. Young WE WILL notify THOMAS RIGGING COMPANY in writing that we have no objections to the employment by said company of the persons named above. CARPENTERS UNION, LOCAL No. 642, UNITED BROTHER- HOOD OF CARPENTERS & JOINERS OF AMERICA, AFL, Labor Organization, By -------------------------------------- (Representative ) (Title) By -------------------------------------- HARRY CECIL 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 Pursuant to charges duly filed by International Association of Machinists, herein called Machinists, the General Counsel of the National Labor Relations Board issued a consolidated complaint against Thomas Rigging Company, herein called Respondent Company, against Carpenters Union, Local No. 642, United Brotherhood of Carpenters & Joiners of America, AFL, herein called Respondent Union, and against Harry Cecil, business agent of Respondent Union, herein called Respondent Cecil or Cecil. This consolidated complaint, upon which the instant proceeding is based, alleged that Respondents had engaged in unfair labor prac- tices, Respondent Company within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, and Respondent Union and Cecil within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Copies of the charges, the consolidated complaint, and notice of hearing thereon were duly served on the various Respondents. The complaint alleged, in substance, that (1) Respondents had agreed to enforce and did enforce a policy whereby all employees and applicants for em- ployment at a particular operation of Respondent Company, known as the Rheem operation, were required as a condition of employment to be cleared, referred, and dispatched as members in good standing of Respondent Union, and (2) Respondent Union and Respondent Cecil caused Respondent Company to refuse to employ five named individuals' because of their membership in Machinists and their nonmembership in Respondent Union, and because they 1 Their names and the alleged dates of discrimination are as follows : Manuel Gonzalves_______________________________________ August 8, 1951 Rex Renner--------------------------------------------- August 8. 1951 Leroy P Young ------------------------------------------ August 13, 1951 John Kershner------------------------------------------- August 16, 1951 Philip B. Glen___________________________________________ September 4, 1951 THOMAS RIGGING COMPANY 75 were not cleared, referred, or dispatched by Respondent Union and Cecil. All Respondents, in their answers, denied the commission of any unfair labor practices. The parties having been duly notified , a hearing was held at San Francisco, California, on April 21, 22, and 23, 1952, before the undersigned Trial Examiner, Martin S. Bennett. All parties were represented by counsel who participated in the hearing and were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. A motion submitted during the hearing by Respondent Company for the sequestration of the five complainants was denied . During the hearing, the undersigned denied various motions by Respondents to dismiss the complaint for lack of jurisdiction of the Board and for failure of proof . At the close of the hearing, the undersigned reserved ruling on motions by Respondents to dismiss the complaint on similar grounds ; these are disposed of by the findings hereinafter made. A motion by the General Counsel to conform the pleadings to the proof with respect to purely formal matters was granted . The parties were afforded an opportunity to argue orally and to file briefs and/or proposed findings of fact and conclusions of law with the undersigned . The General Counsel presented oral argument and briefs have been submitted by Respondents as well as a supplemental brief from Respondent Union. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Thomas Rigging Company is a California corporation which maintains its principal office and place of business at Emeryville , California, where it is engaged in hauling, rigging, and the installation of machinery, all within the State of California . The instant case relates solely to certain services rendered by Respondent Company at a plant operated by Rheem Manufacturing Company, herein called Rheem , at San Pablo, California. These services consisted of the installation of machinery and equipment, including presses and lathes. This installation was and still is being performed by Respondent Company as sub- contractor under a contract with Christensen & Lyons , which, in turn, is the general contractor for the installation of all equipment in this plant at San Pablo as well as contractor, under a separate contract, for the construction of the plant. The agreement between Respondent Company and Christensen & Lyons states on its face that Respondent Company is to "Furnish the necessary labor, materials and equipment and insurance required to do the millwright and rigging work as directed for the installation of machinery for the 81mm Mortar Shell Line." This contract further states that the work is to be performed in connection with "Our Contract With Rheem Manufacturing Company Equip- ment Installation 81mm Mortar Shell Line." It is contended herein by Respondents that the operations of Respondent Com- pany do not affect commerce . Under the facts of the case, however, and when consideration is given to the machinery in question and the purpose for which it is used, the undersigned must reject this contention . As stated , Respondent Com- pany, although a subcontractor, is directly engaged in the installation of ma- chinery used by Rheem in its manufacturing operations . This plant was constructed specifically and solely for the purpose of manufacturing ordnance material for the armed services. Construction of the plant commenced in the forepart of 1951 and equipment began to arrive during the latter part of July. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company first came into the picture early in August ? The part played by Respondent Company is to move this machinery from the railroad siding on the plant premises or from the plant dock to the portion of the plant where it is to be used and then to install it in the appropriate location . This also entails the shifting of machinery between various locations in the plant. The equipment installed at Rheem by Respondent Company is machinery for the manufacture of 81mm mortar shells for the Army. This equipment, which is valued at approximately $1,500.000, consists of two types. Class A, which constitutes approximately 20 percent of the lot, is equipment purchased by Rheem as prime contractor for the account of the Government and rebilled by Rheem to the Government ; this equipment is shipped to the plant from various States of the United States. Class B, comprising the remaining 80 percent, is Government- owned equipment furnished from the industrial reserve inventory and shipped to the San Pablo plant from Government arsenals in various States of the United States. It also appears that Respondent Company is currently installing certain equipment to be used by Rheem in the manufacture of cartridge cases for the United States Navy ; this equipment is valued in excess of $2,000,000. The shell components manufactured by Rheem under the mortar shell program are shipped by Rheem to various States of the United States and are currently valued at $389,000 per month. During the period from August 1951, when Respondent Company commenced operations at the Rheem plant, and the first of April 1952, the services rendered by Respondent Company at the Rheem plant were valued at and payment was made in the sum of approximately $52,000. It may be noted that under the contract procedure the general contract of Christensen & Lyons was first accepted by Rheem and then by the appropriate officials of the armed services. In addition, the subcontracts between Christen- sen & Lyons and its representative subcontractors , including that with Respondent Company, must be approved by Rheem as well as by the Government ordnance contracting officer ; this procedure was followed here. Under all the foregoing circumstances , the undersigned is of the belief and finds that the operations of Respondent Company affect commerce in that they substantially affect the national defense effort and that it would effectuate the policies of the Act to assert jurisdiction herein. N. L. R. B. v. Ozark Dam Con- tractors, et at., 190 F. 2d 222 (C. A. 8) ; Local Union No. 50 , United Brotherhood of Carpenters (E Joiners of America, AFL (Clyde M. Purr) , 98 NLRB 1288; and Westport Moving and Storage Company, 91 NLRB 902. Furthermore, jurisdiction may be asserted on the separate ground that Re- spondent Company is furnishing services valued in excess of $50,000 per annum to Rheem Manufacturing Company, which in turn is producing goods destined for out-of-State shipment valued in excess of $25,000 per annum . While it is true, as Respondents contend, that these services are being performed under a subcontract with Christensen & Lyons, the undersigned deems to be controlling herein the fact that these services are patently services of a most vital nature which are being performed directly at the site of the manufacturing operation in question and in fact consist of the actual moving and installation of the ma- chinery used by the manufacturer , Rheem, in the production of these goods. See Hollow Tree Lumber Co., 91 NLRB 635. Accordingly , the undersigned fur- ther finds, under the immediately preceding theory , that the operations of Re- 2 Although the order to Respondent Company from Christensen & Lyons for the per- formance of this work is dated September 19, 1951, it is clear from the testimony of Fred J. Wood, works manager of the Rheem plant , that Respondent Company commenced operations at the plant in the "forepart of August " Apparently this was done under a proposal of August 1 to Christensen & Lyons which was orally accepted and later followed by written acknowledgment on September 19, 1951. THOMAS RIGGING COMPANY 77 spondent Company affect commerce within the meaning of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein' II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists, and Carpenters Union, Local No. 642, United Brotherhood of Carpenters & Joiners of America, AFL, are labor or- ganizations admitting to membership employees of Respondent Company. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues This case stems from a longstanding jurisdictional dispute between Re- spondent Union and Machinists over millwright work. See M. W. Kellogg Co., 94 NLRB 526, and Suy nerton and Walberg Company, 94 NLRB 1079. The General Counsel in the instant proceeding attacks the purported discriminatory "policy and practice" of Respondents in requiring applicants for employment with Re- spondent Company to be cleared with and referred by Respondent Union as members thereof. The basic position of Respondents is that no such policy and practice existed, and it is the further contention of Respondent Company that its policy was solely to employ the most qualified help available with the added factor that in view of the dangerous nature of the work, it sought the services of experienced former employees. It should be noted that the complaint does not contain any allegation that Re- :ipondent Company by the foregoing conduct has engaged in conduct violative of Section 8 (a) (2) of the Act. It is therefore inferred that the General Counsel is not attacking the existing contractual relationship between Respondents, de- scribed below, and that he is seeking a remedy directed primarily to the eradica- tion of the alleged illegal practices. See Utah Construction Co., 95 NLRB 196. At the time material herein, Respondent Company was party to a 42-county contract between United Brotherhood of Carpenters & Joiners of America, AFL, together with its affiliated councils and locals, including Respondent Union, and Northern California Chapter and Central California Chapter of the Associated General Contractors of America, Inc. This contract, dated April 30, 1951, was to run until May 1, 1952, and from year to year thereafter unless canceled or modified. Its union-security provisions do not on their face appear to be violative of the Act and, as stated, it is inferred that the General Counsel is not attacking this contractual relationship as such in the instant proceeding. B. The facts At the outset it is to be noted that the Rheem plant at San Pablo was in the process of construction during 1951, and that actual manufacturing operations did not commence until sometime in September. After a pilot lot was turned out, a model change was made and production was stopped. Tooling was rede- signed and the machinery rearranged ; production recommenced on November 12 and shipments resumed on or about December 1. Respondent Company commenced its rigging and installation operations in the "forepart of August." It has raised the contention herein that the five claim- ants were not seeking employment with it, but rather with Rheem. This con- S Certain evidence was introduced with respect to services performed by Respondent Company for other concerns which are either public utilities or concerns which appear to be engaged in commerce. In view of the considerations expressed above, it is deemed unnecessary to decide whether those facts independently bring the operations of Respondent Company within the jurisdictional policy set forth in Hollow Tree Lumber Co., supra. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tention is not supported by the weight of the evidence. All five claimants were construction machinists who were experienced in work with machinery and its installation. Thus, Gonzalves, Renner, and Young went to the plant early in August while it was still under construction. Gonzalves sought work as an "erection machinist." When Young went to the plant on August 13, Rheem had no personnel office open and Young's testimony discloses that he sought work as a construction machinist. While it is true that Glen on or about September 6 filed an: application for work with Rheem, he did this only after he had unsuccessfully sought work on September 4 with Respondent Company at his trade of erection machinist. It is therefore found that the five claimants herein actually sought work with Respondent Company, as described below in more detail, and not with Rheem Manufacturing Company, as contended by Respondent Company.' Manuel Gonzalves, a member of Machinists for 10 years, and experienced in the installation of machinery, learned that machinery installation work was to commence at the Rheem plant and went to the plant on August 8, 1961, in search of employment in his field. As found, the plant was not complete and was not in operation. He approached Jack Burgman, general foreman for Respondent Company,' and asked him for work ; Burgman, in turn, asked Gonzalves what work he had done and the latter replied that he was a "machinist." Burgman then stated that he could use Gonzalves "around the first of the week," but pro- ceeded to ask Gonzalves "what local I belonged to, what union, and I told him the Machinists." Burgman informed Gonzalves that he would "have to belong to the Millwrights' Union . . . [and] would have to go down and see Cecil at the Millwrights Local before I could go to work there."' On the following day, August 9, Gonzalves went to the Labor Temple in Rich- mond and informed Cecil that he desired employment at the Rheem job. Gon- zalves stated that he had been a machinist for 7 years with the Standard Oil Company, whereupon Cecil replied that "you know the machinists and mill- wrights don't get along too well." Cecil added that in order to work at the plant Gonzalves would have to take a withdrawal card from Machinists and would be required to pay an initiation fee of $100 in Respondent Union ; this, it appears, was the customary initiation fee. Cecil continued on to say that even if Gonzalves complied with the foregoing and was sent to the job by Cecil, the men working on the project, if they learned that Gonzalves was a former member of Machinists, might walk off the job. Cecil added that in any event he had men out of work whom he had to place first. The conversation ended and Gonzalves left ; he did not contact Burgman or Cecil again.' 4 Members of Machinists and Respondent Union perform identical work on construction or rigging operations of this nature. The undersigned finds, as demonstrated by the record, that members of Machinists engaged in this type of work are known as machinists , erection machinists, or construction machinists, and that members of Respondent Union who perform this type of work are known as millwrights ; the latter group is distinguished from carpenters who, although likewise members of Respondent Union , do not install machinery. 6 Burgman has been a general foreman with Respondent Company for approximately 6 years and was general foreman over the Rheem job, having commenced operations there on or about August 6. He is admittedly a supervisory employee, and, in fact, the only representative of Respondent Company on the job save for occasional visits by Vice- President Dalzell. 4 It is found that this reference was to Respondent Harry Cecil, business agent of Respondent Union at Richmond, California. 1 The foregoing findings are based on the testimony of Gonzalves , a clear and forthright witness whose testimony is credited in full. iBurgman did not testify specifically concern- ing his talk with Gonzalves. Cecil testified that Gonzalves came to his office and asked for millwright work and that be, Cecil , replied that he had none. Gonzalves then allegedly asked how much it would cost to join Respondent Union and Cecil replied that the THOMAS RIGGING COMPANY 79 Rex Renner, a member of Machinists for many years and experienced in machinery erection, went to the Rheem plant on August 8, proceeded to the area where machinery was being installed, and asked Burgman for work. Burgman replied that he would like to have him on the job, but that Renner "would have to go down and get a clearance to go to work from Mr. Cecil." Renner replied that he doubted that Cecil would clear him because he, Renner, was a member of Machinists. Burgman then stated that there was a position open for him if he could obtain the clearance. After failing to find Cecil at the Labor Temple on August 9, Renner did meet him there on August 10. He informed Cecil that Burgman wanted him on the job and that he, Renner, had been instructed by Burgman to obtain a clearance from Cecil. The latter replied that he had no orders from Burgman for men, but that even if he did three of his men were out of work and they, as he had told Gonzalves, would be placed on the job before anyone else was. Renner replied that he would relay this information to Burgman. On Monday, August 13, Renner returned to the plant and informed Burgman of Cecil's statements. Burgman replied that he could not do anything about it ; that his hands were tied ; that he had told Renner what to do ; and that he had to take the men "that they issue . . . on a clearance." The conversation then ended .8 Leroy Young also attempted to obtain work at Respondent Company's project at the Rheem plant. Young, a construction machinist for a number of years and a member of Machinists, learned of the erection work at the Rheem plant. He stopped at the business office of Machinists on August 13, 1951, and asked Amos Doane, business representative of Machinists for construction, if he knew the location of the project. Doane, who had previously been informed that members of Machinists were experiencing difficulty in obtaining employ- ment with Respondent Company on this erection work, replied that he was about to visit the plant himself; the two men proceeded to the plant that morning. They met Burgman at the job site and introduced themselves. Doane dis- closing his representative status with Machinists. Young informed Burgman that he was seeking work as a construction machinist and asked if any such work was available. Burgman replied that he had no positions open, but that he expected more work during the following week. Young asked if he could leave his name and address so that Burgman could contact him when work became available. Burgman agreed that Young could leave this information with the timekeeper and stated that he would call Young in to work when the machinery, which was expected during the following week , arrived. Burgman then directed Young to the timekeeper's shack some 20 feet distant. Young walked over to it and wrote his name and address on a sheet of paper provided by Timekeeper Jacobus. This slip of paper was pinned on the wall by Jacobus, as was his practice with respect to the slips filed by all applicants. initiation fee was $100. Cecil admitted that he asked Gonzalves if he belonged to another labor organization and, on learning that he did, informed him, that he would have to take a withdrawal card from Machinists . All these circumstances, including the partial corroboration of Gonzalvea by Cecil as well as the very fact of the calls on Cecil by Gonzalves and Renner , described below, after visiting Burgman, serve only to add weight to Gonzalves' testimony herein. 8 The foregoing findings are based upon the credited testimony of Renner. Cecil, who was present at the hearing during Renner's testimony, did not recall any conversation with Renner, and Burgman was not questioned on the topic. Although Renner testified, mistakenly as it later appeared, that he had learned of the job opportunity at the Rheem plant from an article in a trade journal , this is deemed to be of little significance. The pertinent and controlling fact is that he submitted what appeared to be and what the undersigned finds to have been a bona fide application for employment with Respondent Company. See Swinerton and Walberg, 94 NLRB 1070. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the interim, Doane and Burgman discussed the jurisdictional dispute between Machinists on the one hand and Respondent Union and its parent international on the other. Young then reappeared on the scene and, as he testified, asked Burgman, "If I got the job, who I would have to get the clearance from." Burgman replied that Young would "have to see Mr. Cecil down at the Carpenters' hall." Young asked him why this was so, and Burgman replied that, "We are bound by the AGC and any man coming down here hired on the job must be cleared through the Millwrights." Young protested that Machinists had been performing this type of work before the Millwrights had, and pointed out that he had been in erection work for a number of years. Young and Doane then left. Young did not contact Respondent Union but returned to the con- struction site on August 17. He was unable to locate Burgman, but spoke to Timekeeper Jacobus. He renewed his request for work and Jacobus replied that there were no openings but that he had Young's address and would call him when a job was open. Young has not seen Burgman since and has not been contacted by Respondent Company.' The record indicates that Young has on occasion worked for Machinists; that he did organizational work in June and July of 1951; and that after August 18, he engaged in further organizational work for Machinists. On the other hand, Young has worked in the industry and did so in March and April of 1951. Moreover, it appears that Machinists was actually interested in obtaining work for its members at this project. After giving the matter close considera- tion, the undersigned finds that Young was in fact a bona fide applicant for work with Respondent Company on August 13, 1951. John Kershner, a member of Machinists for many years, applied for work with Respondent Company at the Rheem plant on August 16, 1951. He met Burgman, informed him that he was out of work, and listed his experience over the preceding few years. Burgman replied that there was no work available, but that he would shortly need additional men and would contact Kershner at that time. He instructed Kershner to leave his name and address and said that he would be called when needed. Kershner proceeded to the timekeeper's shack, as directed by Burgman, and left his address and telephone number with Timekeeper Jacobus. The latter, as Kershner started to leave, asked him either if he belonged to the Millwrights or was a millwright. Kershner replied in the negative, and added that he belonged to the Machinists. He then left and has not since been contacted by Respondent Company." Philip Glen, a member of Machinists, applied for work at the Rheem project on September 4,1951. He approached Burgman in an area of the building where the presses were being erected and asked if Burgman had a job for him. Burg- man immediately asked Glen if he was a "Machinist." Glen replied that he was. Burgman then stated that all his men were "Millwrights"; that he had nothing open at the moment ; but that if Glen left his name, address, and telephone num- ber he would call him when something developed. Glen promptly placed this information in a pocket notebook carried by Burgman. On or about September 6, Glen returned to the job site and spoke to Burgman who informed him that things were progressing slowly and that he had in fact laid off a man on the previous day. Burgman then asked Glen if he was interested in working for Rheem itself. Glen replied that he would welcome any work. Burgman Intro- Findings herein are based on the testimony of Young which is substantially supported by that of Doane. iBurgman was not questioned concerning this talk, but testified generally that hirings were based solely on qualifications. 10 The foregoing findings are based upon the credited testimony of Kershner Jacobus did not recall the talk and later testified that he had never spoken with Kershner. He was an unimpressive witness and his testimony is not credited. THOMAS RIGGING COMPANY 81 duced Glen to a Rheem foreman, who sent him to the Rheem personnel office where he applied for work as a maintenance machinist. Glen has not been offered work by either concern C. Contentions, analysis, and conclusions The gravamen of the complaint is, as stated, an attack upon the alleged policies of Respondents to require clearance by and membership in Respondent Union of applicants for employment with Respondent Company. The General Counsel in effect contends that Respondents imposed closed-shop conditions on the Rheem job, this constituting a greater form of union security than is per- mitted by the Act whether by contract or otherwise. See Von's Grocery Co., 91 NLRB 504, and Swinerton and Walberg, supra. Respondent Union contends that it had no agreement with Respondent Com- pany relative to furnishing employees for the Rheem job ; however, as noted, they did have an agreement which provided for recognition of the Union as collective bargaining representative of the employees of Respondent in classifi- cations represented by Respondent Union. The Union further contends that it never cleared anyone for millwright work at the Rheem job. Respondent Com- pany claims that it did not contact Respondent Union for employees, but rather employed the most qualified help and that, because of the dangerous nature of the work, former employees were uniformly contacted and rehired. There are, however, a number of factors which do violence to and prevent acceptance of the above-stated contentions of Respondents. (1) Firstly, there is the evidence, set forth above, with respect to what took place when Gonzalves and Renner attempted to obtain employment with Respond- ent Company on August 8, 1951. Gonzalves called on General Foreman Burg- man on that date and the latter specifically asked Gonzalves which union he belonged to and, on learning that he belonged to Machinists, informed him that he would have to belong to Respondent Union and that he would have to see Business Agent Cecil before he could work at the plant. When Gonzalves visited Cecil on the following day, the latter refused to approve him for work at Rheem, pointing out, inter alia, that he had other men to place first. Although t.}s may not be indicative of an actual contractual relationship between Respondents, it does show that Respondent Company was accepting the determination of Respondent Union as to who should be permitted to work for it. This is demon- strative of closed-shop conditions which are violative of the Act. American Pipe and Steel Corp., et al., 93 NLRB 54. (2) The case of Renner falls into an almost identical pattern. He applied for work on August 8 and was informed by Burgman that he would have to obtain a clearance from Cecil. On August 10, Cecil pointed out to Renner that he had no requisition for help from Burgman, but that in any event, as he had informed Gonzalves, he had other men to be placed first. When Renner related this to Burgman, the latter pleaded his helplessness in the situation and stated that he had to hire only the men sent on clearance from the Union. Here, too, the record demonstrates that employment was conditioned upon obtaining a clearance from Respondent Union and that employment was refused by Respond- ent Company because of the failure to obtain such clearance. See International Brotherhood of Boilermakers, et al. (Consolidated Western Steel Corp.), 94 NLRB 1590. The failure of Respondent Company to hire Gonzalves and Renner because of their inability to obtain referral slips from the Union is hardly explainable except on the theory that Respondents had an understanding or oral agreement that no individual would be hired who had not obtained a referral or clearance 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Respondent Union. The conduct of Cecil, in his meetings with Gonzalves and Renner, was that of one who was fully familiar with the entire picture. At no time did he disavow this policy of clearance with Respondent Union and, in fact, the record demonstrates that he availed himself of the benefits thereof. Moreover, it is clear that the objection of Cecil to Gonzalves and Renner was based upon their nonmembership in Respondent Union. The undersigned is of the belief and finds, in view of the foregoing, that an unlawful hiring practice existed between Respondents. It is well established that all job discrimination designed to achieve union security is outlawed by the Act except under the circumscribed conditions set forth under the so-called union-shop proviso, permitting discrimination only for nonpayment of initiation fees and dues. N. L. R. B. v. Newspaper and Mail Deliverers' Union, 192 F. 2d 654 (C. A. 2), and N. L. R. B. v. Radio Officers' Union, 196 F. 2d 960 (C. A. 2). Furthermore, an employer cannot relieve himself of discrimination against em- ployees by delegating to a union control over their employment. Air Products, Inc., 91 NLRB 131, and American Pipe and Steel Corp., supra. (3) Turning to the case of Young, the evidence demonstrates that he was informed on August 13 by Burgman, after he had applied for work, that he would have to obtain a clearance from Cecil. This was patently an added instance of Respondent Company insisting upon an illegal clearance with Re- spondent Union. This may be distinguished from the situation where an em- ployer may lawfully utilize the hiring hall facilities of one or more labor organ- izations. Furthermore, Respondents do not contend that such a policy with respect to hiring existed between them. And, although it is true that Young did not contact Cecil, he was not required to do so. It has been demonstrated that an illegal arrangement existed between Respondent's requiring clearance with Respondent Union and, by being a party to such arrangement, Respondent Union became jointly responsible for any failure of an applicant to obtain employment as a result thereof. Utah Construction Co., 95 NLRB 230. (4) In the cases of Glen and Kershner, the evidence, although not as strong, falls into the same pattern. Kershner, a member of Machinists, applied for work on August 16 and was instructed to leave his name and address; at the same time, Respondent Company ascertained that he was not a member of Mill- wright's and that he belonged to Machinists. Glen experienced a similar inter- view on September 4 when he applied for work and was told by Burgman to leave his name and address. Here, too, Burgman ascertained that Glen was a Machinist. Neither was offered employment at any time thereafter, although the record demonstrates that other employees were put on the payroll at later dates. In considering these last two cases, an analysis of Respondent Company's con- tentions and its employment records will be helpful. It may be noted that Respondent Company at the hearing specifically disavowed any challenge of the experience or ability of the claimants, none of whom had worked for it before. Moreover, the respective interviews demonstrate that Burgman was not par- ticularly concerned with their qualifications at the time. Accordingly, it is found that the claimants, including Glen and Kershner, were not denied em- ployment because of lack of qualifications. Respondent Company does not contend that these two claimants were denied work for lack of employment opportunity and it could not because the record demonstrates that there were hirings then as well as later. This presents squarely for analysis Respondent's contention that it hired the most qualified help and that it hired former employees who had previously worked for it on THOMAS RIGGING COMPANY 83 prior construction projects. The source of reference, according to General Foreman Burgman, was his pocket notebook which included the names of workmen who "have worked with us and worked for us." Burgman added that these were men "that have worked for me several times during the past several years," and that these were men personally known to him . However, the record does not support Burgman in this respect. Evidence was introduced with respect to Respondent Company's hirings after Kershner and Glen unsuccessfully attempted to enter its employ on August 16 and September 4, respectively . The record discloses that Respondent Company thereafter hired a number of employees . The hiring of two in October, Rainey and Thompson, was explained by the Company on the theory that they had previously worked for it on a prior project during 1949. And the hiring of one, Ramsey, on October 11 is countered by testimony that he worked for an- other employer in 1948-1949 ; that this was millwright work jointly performed by the two concerns ; that Ramsey worked under Burgman's supervision ; and that Burgman as a result was familiar with his work. However, a number of hirings during this period disprove the Company 's claim that it hired experienced former employees . On September 6, one Belcher was hired . According to Burgman , he was in need of help and discussed the mat- ter with an employee named Allen . Allen informed him that he knew Belcher to be at liberty and Burgman instructed Allen to bring in Belcher. In other words, Belcher was not hired as the result of a listing in Burgman's notebook. He was, on the contrary, a workman who was brought in by another workman. Although, by coincidence, Belcher did work for Burgman on an occasion 6 years before, this was not the basis on which he was recalled. A similar procedure was followed in the hiring of one, Colbuth , on October 10. Here, too, Burgman engaged in a discussion with Allen, who in turn con- tacted Colbuth and brought him in. Colbuth had never worked for the Com- pany before or for Burgman. The latter supplied some nebulous testimony to the effect that Colbuth had worked for one Shiller, either a past or present fore- man with the Company. The undersigned finds, however, that this hiring was not the hiring of one who had previously worked for the Company. One, Drury, was hired on October 2. Burgman flatly admitted that he had not known him previously. One, Powert, was hired on October 10, and he had never worked for the Company before. Furthermore, there was the hiring on November 6 of one Spencer, who had not worked for the Company previously ; according to Burgman, he was brought in by his brother-in-law Thompson, a millwright. It is thus apparent that in a number of instances Burgman 's purported prac- tice of recalling former employees was not followed. Burgman's conversations with Allen with respect to the hiring of new em- ployees take on added significance when it is noted that Allen is shop steward for the Millwrights on the project and wears a button so designating him. Ac- cording to Burgman , Allen, who did not testify, belongs to Local 102, a San Fran- cisco sister local of Respondent Union. Moreover, Burgman is admittedly a member of Respondent Union and has been since 1947, having prior thereto be- longed to Machinists. Finally, Vice-President Dalzell, of Respondent Company, admitted that he had hired workmen who had not previously worked for the Company. The evidence discloses but one contact between Burgman and Business Agent Cecil of Respondent Union. According to Burgman, he called Cecil in the latter part of August 1951 to ascertain the adresses of three men whom he desired to 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ on the Rheem project. These included Allen, the shop steward referred to above, and one Rath. According to Burgman, he was under the impression that these men had at one time belonged to Respondent Union. Cecil agreed to locate them and did locate their addresses and telephone numbers. Burgmarb testified that Cecil then visited him and supplied this information, whereupon Burgman telephoned two of the three, apparently Allen and Rath, and asked them to stop in and see him. As the record shows that these two were hired on August 13, the undersigned infers that this contact between Burgman and Cecil took place sometime prior thereto and about the time work was starting on the project 11 According to Cecil, Burgman called him in an effort to locate the men. He testified that he informed Burgman that they were not members of his local ; that he would attempt to locate them ; and that he did locate them through the local in the neighboring town of Antioch. It is apparent from the foregoing that Rath was located by Burgman as a result of this telephone call to Cecil. However, the record shows that Rath had previously sought employment with the Company by leaving a slip with his name and telephone number with the timekeeper, as did Glen and Kershner. Moreover, this slip was still on the bulletin board as late as March 1952, as was that of Leroy Young, whose case has been discussed above. Burgman testified, on the one hand, that he had seen Rath's slip before he was hired, but that prior thereto he had received the telephone call and the information from Cecil. The only inference that the undersigned can draw from this confused situation is that the instructions to Glen and Kershner to leave their names with the time- keeper were meaningless, for Burgman simply did not hire employees who left their names in this fashion ; in fact, he testified he hired from his black-book listing of former employees. To the foregoing must be added the factor that there has been some turnover in the millwright crew and that, as of the date of the hearing, Respondent Com- pany has still not seen fit to offer employment to Kershner and Glen, although not disputing their qualifications." And, at least in the case of Glen, it will be recalled that Burgman asked if he was a Machinist at the time of his application, and then pointed out that all his men were Millwrights. Although Kershner was not queried by Burgman on this topic, Timekeeper Jacobus did ascertain that Kershner was a Machinist and not a Millwright at the time of his application ; moreover, Burgman did promise to call Kershner in to work. Also to be noted is the testimony of Dalzell that there are no Machinists working for Respondent Company at the Rheem project. He also testified that he "imagined" all mill- wright employees in August and September of 1951 to have been members of Millwrights but that he was not certain this was true with respect to all of them. Under all the foregoing circumstances, the undersigned finds that Glen and Kershner were denied employment for reasons other than those advanced by Respondents. When note is taken of the interviews accorded Gonzalves, Renner, and Young shortly before, the inquiries made of Glen and Kershner, the other hirings, and the lack of tenability to Respondents' contentions, the evidence u The company records show that after Burgman and Timekeeper Jacobus started on the project on August 6 and 7, respectively, millwrights were next hired on August 8 when two additional men were put on. " Contrary to the contention of Respondents , evidence of earlier or later conduct, which sheds light on the purpose or character of particular transactions within the period germane herein, is material and pertinent . Federal Trade Commession Y. Cement Institute, 68 S Ct. Rep. 793. N. L. R. B. v. Luzerne Hide and Tallow Co., 188 F. 2d 439 (C. A. 3). THOMAS RIGGING COMPANY 85 preponderates in favor of a finding that Glen and Kershner were denied employ- ment by Respondent Company as a result of the same unlawful practice of clearance with Respondent Union that was utilized in the three earlier cases. And the record demonstrates in those cases that clearance was predicated upon membership in Respondent Union. Accordingly, the undersigned deems the present case to be clearly distinguishable from Del E. Webb Constructwn Co. v. N. L. R. B., 196 F. 2d 841 (C. A. 8), cited by Respondent Union. Although the topic of clearance was not raised as such in the latter two cases, the ascertainment of their union affiliation, when viewed against the background of the three previous cases, leads the undersigned to conclude that Glen and Kershner would have been proffered work by Respondent Company, absent an unlawful hiring practice ; and, although the cases of these two are of a subtler nature than those of the first three, the evidence in this record warrants a finding that this failure to hire resulted from the same policy of granting employment solely to referrals from Respondent Union of members of Millwrights. The fact is that Respondent Company hired Shop Steward Allen as the result of contacting Respondent Cecil and that it was Allen who later produced employees for the Company when informed by Burgman of the need therefor. The undersigned finds that by failing to hire Gonzalves, Renner, Young, Glen, and Kershner on the dates of their respective applications, as well as thereafter, Respondent Company has discouraged membership in Machinists and encouraged membership in Respondent Union, thereby engaging in conduct violative of Section 8 (a) (1) and (3) of the Act. It is further found that this failure to hire was caused by respondent Union and Respondent Cecil and that the latter, by the foregoing, have engaged in unfair labor practices violative of Section 8 (b) (1) (A) and (2) of the Act. N. L. R. B. v. Newspaper and Mail Debverers' Union, et al., 192 F. 2d 654 (C. A. 2), enfg. 93 NLRB 237; Daniel Hamm Drayage Co., Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 (C. A. 5) ; International Brother- hood of Teamsters et al., 98 NLRB 824; Schweiger Construction Co., 97 NLRB 1407; Guerin and Co., 92 NLRB 1698; Swinerton and Walberg, supra; General Electric Co.. 94 NLRB 1261; and Pinkerton's National Detective Agency, Inc., 90 NLRB 205. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operations of Respondent Company set forth 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 Respondents, and each of them, have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Union and Respondent Cecil have caused Respondent Company to discriminate against Manuel Gonzalves, Rex Renner, Leroy Young, John Kershner, and Philip Glen in regard to their hire and tenure of employment, thereby encouraging membership in Respondent Union and dis- couraging membership in Machinists. It will be recommended that Respondent Company offer the five complainants immediate employment in the positions pre- 250983-vol. 102-53-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viously applied for and discriminatorily denied them, or to substantially equiva- lent positions, without prejudice to their seniority or other rights or privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. Having found that Respondent Union and Respondent Cecil caused Respondent Company to refuse to employ the aforenamed five em- ployees, it will be recommended that they notify the Company, in writing, that they have no objections to the employment of these five employees and that they request the Company to offer them full and immediate employment. It will further be recommended that Respondents, jointly and severally, make whole the aforenamed five complainants for any loss of pay suffered by reason of the discrimination against them. Squirt Distributing Company, 92 NLRB 1667. The liability of Respondent Union and Respondent Cecil for back pay shall terminate 5 days after they notify Respondent Company that they have no objections to the employment of the five aforenamed employees. Pinkerton's National Detective Agency, Inc., supra. Said loss of pay shall be computed in accordance with the formula established by the Board in F. W. Woolworth Co., 90 NLRB 289. See Crossett Lumber Co., 8 NLRB 440. The unfair labor practices found to have been engaged in by Respondents are of such character and scope that, in order to insure employees and prospective employees of Respondent Company the full rights guaranteed them by the Act, it will be recommended that Respondents and each of them cease and desist from in any manner interfering with, restraining, or coercing their employees or pros- pective employees in their right to self-organization. On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, and Carpenters Union, Local No. 642, United Brotherhood of Carpenters & Joiners of America, AFL, 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 Manuel Gonzalves, Rex Renner, Leroy P. Young, John Kershner, and Philip P. Glen, thereby encouraging membership in Respondent Union and discouraging mem- bership in Machinists, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing the aforesaid Manuel Gon- zalves, Rex Renner, Leroy 1'. Young, John Kershner, and Philip B. Glen in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By causing Respondent Company to discriminate against the aforenamed five individuals in violation of Section 8 (a) (3) of the Act, Respondent Union and Respondent Cecil have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing applicants for employment with Respondent Company, Respondent Union and Respondent Cecil have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.]