International Brotherhood of Boilermakers, Iron Ship Builders, and Helpers of America

LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 339 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL bargain collectively upon request with Amal- gamated Clothing Workers of America , C.I.O., Local 297, as the exclusive representative of all employees in the bar- gaining unit described below with respect to wages, rates of pay, hours of employment , or other terms or conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All employees in the men's and women's alteration departments at the Respondent ' s Los Angeles, Long Beach , Hollywood , Huntington Park, San Diego, Pomona, Burbank, and San Bernardino , California, retail establishments , including tailors, bushelmen- fitters, finishers , operators , rippers, and pressers, excluding all supervisors within the meaning of the Act. WE WILL NOT in any manner interfere with the efforts of the above -named union to bargain collectively with us, or refuse to bargain with said union as the exclusive repre- sentative of the employees in the bargaining unit set forth above. FOREMAN & CLARK, INC., Employer. Dated ................. By................................................... (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIP BUILDERS, AND HELPERS OF AMERICA, AFL: AND JOHN KENNEDY., Its Business Agent and FRANK H. DONLON, Jr. and THE BABCOCK & WILCOX CO. Case No. 4-CB-129. June 4, 1953 DECISION AND ORDER On January 15, 1953, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled pro- 105 NLRB No. 31. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding, finding that the Respondent Union and its business agent 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. There- after the Respondent Union filed exceptions to the Intermediate Report and a supporting brief. The Board ' has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner, with the following additions and modifications.2 1. We agree with the Trial Examiner that although there was no written contract between Babcock & Wilcox and the Respondent Union there was a tacit understanding or working arrangement between them that on jobs requiring work of the kind customarily performed by members of the Respondent Union, Babcock & Wilcox would hire only members of the Respondent Union who had been referred by it for employ- ment. This understanding reflects the general practice of the Respondent Union, which in turn stems directly from its working rules .' As pointed out in the Intermediate Report, rule 17 provides that ''Only members in good standing shall be employed on all jobs coming under the jurisdiction of Lodge No. 13. All men shall be hired through the business representative of Lodge No. 13," and rule 8 provides that "the business representative shall have access to all jobs, and it shall be his duty to appoint foremen and stewards on all jobs." Rule 8 imposes on the stewards the duty, inter alia, of s eeing that the working rule s are enforced. James J. Ryan was vice president of the Local when the present working rules were drafted in 1947 and continued in that office until June 1952. While holding that office he fre- 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel ( Members Houston, Murdock , and Peter- son] 'Consistent with the views expressed in his dissenting opinions in American Pipe and Steel Corporation, 93 NLRB 54, and Byers Transportation Company, Inc., 94 NLRB 1494, Member Murdock would be disposed to find that there was no restraint, coercion, or discrimination to encourage membership in a labor organization shown, and would accordingly dismiss the complaint In his view, Donlon, who had chosen to be a member of the Union, had agreed to be bound by its rules which provided a fair and equitable rotation of job opportunities among out-of-work members Donlon therefore could not complain against the withdrawal of a job assignment mistakenly given him in the belief that he was out of work and entitled to the next opportunity However, recognizing that his views are contrary to the majority decisions in the cases referred to, and that he is bound thereby, Member Murdock has signed the decision in this case. 3Indicative of the significance of the working rules to the Respondent Union's practices is the fact that in at least one instance in which the Respondent Union had a written contract with an employer, Philadelphia Iron Works, Inc ., the contract provided that " , . the working conditions of Local Lodge No 13 shall be complied with in conjunction with this Agreement." See Philadelphia Iron Works , Inc., 103 NLRB 596. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 341 quently served as steward on various jobs, the last of which terminated in March 1951. Several of these were jobs in which Babcock & Wilcox was the employer. He testified without contradiction that on all these jobs, when men were needed, the erector conveyed his needs to the foreman, the foreman told the steward how many men would be required, and the steward called the union office and told them to send the requisite number of men. No men were placed on the payroll until they had reported to the steward. Usually they had written evidence of referral by the Local but if not, the steward would check with the Local's office to make sure they had clearance satisfactory to the business agent. In filling the requests made by stewards, the business agent, or persons acting under his supervision, referred members in rotation from the out-of-work-list which was maintained in the office of the Local for that purpose. The charging party, Frank Donlon, testified, also without con- tradiction, that at a meeting of the Respondent Union in May or June 1951, Frank Kennedy, its business agent, taking hold of the current out-of-work list, said, "This is the work list and this is the only way anyone will go to work in Local 13, through this list and myself."' The circumstances fully set forth in the Intermediate Report, under which Frank Donlon was refused employment with Babcock & Wilcox at its University of Pennsylvania job in June 1951, clearly indicate that Babcock & Wilcox was complying with the demand of the Respondent for such action, transmitted through the Respondent Kennedy, Peterson, and St. John, the latter two being respectively the steward and the foreman on the jobs 4Kennedy made this statement immediately after a member had obtained the floor and advocated throwing the then current out-of-work-hst "out the window" because he believed that "it was not worked fairly " The Trial Examiner admitted this testimony but rejected subsequent offers of proof that Kennedy repeated his statement in substance at later union meetings. The Trial Examiner also rejected questions designed to elicit how many union meetings occurred at which the out-of-work list was discussed. In his intermediate Report (footnote 11) the Trial Examiner states that he "ignores all testimony in the record as regards what was said and by whom at meetings of Local 13" (underscoring supplied) because such testimony concerns the internal affairs of the Union. We do not adopt the Trial Examiner's remarks in this connection insofar as they imply that the Board should not rely on testimony relevant to the issues in a case before it because such testimony may involve the internal affairs of a union. Although most of the testimony and offers of proof to which the Trial Examiner refers were not clearly relevant, the quoted statement of Kennedy was and, in fact, objection was not made to its receipt in evidence. 5St John testified that on June 18, 1951, Peterson told him that Kennedy had telephoned Peterson and told him "not to allow Frank Donlon to go to work when he showed up " Peter- son, whose testimony was not introduced until after St John's, testified that before Donlon appeared at the University of Pennsylvania job site, but on that same day, Kennedy tele- phoned him and said, "If Frank Donlon shows up not to allow him to go to work." The Respondent Union contends that this testimony of St John's has no probative value because it was hearsay and that of Peterson so confusing and inconsistent as to lose any aspect of credibility. Although St John's testimony was hearsay as to whether Kennedy called Peterson and what he told him, it was clearly admissible to establish the fact that Peterson informed St. John that there was such a conversation and Peterson's version of the substance of the conversation. After the introduction of Peterson's testimony the Trial 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that Kennedy made his demand because he had learned, after telegraphing Donlon to report at the University of Pennsylvania job, that while Donlon's name was on the out-of-work list Donlon had obtained employment outside the jurisdiction of the Respondent Union without reporting that fact to the Union, thus disrupting the rotation system. The conduct of Kennedy and of Babcock & Wilcox is thoroughly consistent with the practice described above of restricting employment to members of Local 13 referred by the Local, thus supporting the conclusion that there was a tacit understanding between the Respondent Union and Babcock & Wilcox to observe such practice. We find, like the Trial Examiner, that because there was no lawful obligation for Babcock & Wilcox to limit employment in this manner, the conduct of the Respondent Union in demanding that Donlon not be permitted to work and the compliance of Babcock & Wilcox with this demand were in violation of Section 8 (b) (1) (A), 8 (b) (2), and 8 (a) (3) of the Act, respectively.6 2. In the absence of exceptions thereto, we adopt the recommendations of the Trial Examiner that Frank Donlon's right to back pay be limited to the period set forth in section V of the Intermediate Report entitled "The Remedy." 3. Also in the absence of exceptions thereto, we adopt the recommendation of the Trial Examiner that Respondent Kennedy not be held personally liable for a proportional share of the back pay recommended above. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: the Respondent Local No. 13, International Brotherhood of Boilermakers , Iron Ship Builders , and Helpers of America , AFL, and its officers, rep- resentatives , and agents , shall: Examiner was justified in treating St. John's testimony as highly corroborative of Peter- son's. Peterson's testimony showed no confusion as to the substance of his conversation with Kennedy or that it took place on the day when Donlon appeared at the job site and before his appearance but only as to the calendar day on which these events took place. Eventually he fixed the day as June 18. Peterson, St. John, Costello (the erector for Babcock & Wilcox on the university job), and Donlon all agree that Donlon appeared at the job site on June 18, 1951, and was refused employment. St John testified further that when Donlon appeared on the 18th, St. John told him, in the presence of Peterson and Costello, that "John Kennedy instructed us not to allow him to go to work." The testimony of Costello and of Donlon corroborates this, and both also testified that at this time Peterson also stated that Kennedy had called him and told him not to let Donlon go to work. Costello admits that he did not even attempt to see that Donlon be given a chance to work. 6 Philadelphia Iron Works Inc., supra Although we agree with this conclusion of the Trial Examiner we do not adopt the reasoning by which he reached it insofar as it implies, or might be interpreted as implying, that there are no circumstances in which an agreement condition- ing employment upon a union 's approval, without more, may be lawfully complied with. National Union of MarineCooks andStewards, CIO(Pacific American Shipowners Association), 90 NLRB 1099, 1101; Pacific American Shipowners Association , et al., 98 NLRB 582 LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 343 A. Cease and desist from: (1) Requiring employees of, or applicants for employment with, The Babcock & Wilcox Co. to obtain clearance or job referrals from Local 13, International Brotherhood of Boiler- makers, Iron Ship Builders, and Helpers of America, AFL, as a condition of employment, unless such referrals are made on a nondiscriminatory basis, pursuant to an agreement entered into in conformity with the Act. (2) Causing or attempting to cause The Babcock & Wilcox Co., its officers, agents, successors , or assigns , to discrimi- nate against applicants for employment or its employees, in the aforesaid or in any other manner, with respect to their hire or tenure of employment, in violation of Section 8 (a) (3) of the Act. (3) In any like or related manner restraining or coercing applicants for employment with or employees of The Babcock & Wilcox Co., its successors or assigns , in the exercise of their rights under Section 7 of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 1. Notify The Babcock & Wilcox Co., in writing, that it does not object to that Company employing Frank H. Donlon, Jr., but on the contrary now requests that it do so, in accordance with the recommendations in the section of the Intermediate Report entitled "The Remedy." 2. Notify, in writing, all other employees, in the area over which it claims jurisdiction and to whom it has furnished work- men, that it does not object to the employment of Frank H. Donlon, Jr. 3. Notify Frank H. Donlon, Jr., in writing, that it has so advised The Babcock & Wilcox Co. and other such employers in the area. 4. Make Frank H. Donlon, Jr., whole for any loss of pay or earnings he may have suffered because of the discrimination against him, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." 5. Post at the office of Local 13 in Philadelphia, Pennsylvania, copies of the notice attached hereto and marked "Appendix A." 7 Copies of said notice , to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by repre- sentatives of the Respondent Union, be posted by it immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that such notices are not altered, defaced, or covered by any other materials. 6. Mail to the Regional Director for the Fourth Region copies of the notice attached hereto as Appendix A for posting, The IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals. Enforcing an Order." Z9t555 0 - 54 - 23 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Babcock & Wilcox Co. being willing, in places where notices to its employees are posted . Copies of said notice to be furnished by the Regional Director for the Fourth Region shall, after being signed as provided in paragraph numbered 5 , above, be forthwith returned to the said Regional Director for the said posting. 7. Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL NO. 13, INTERNATIONAL BROTHERHOOD OF BOILERMA KERS, IRON SHIP BUILDERS, AND HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF THE BABCOCK & WILCOX CO. Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT require applicants for employment with, or employees of, The Babcock & Wilcox Co. to obtain clearance or job referrals from this union as a condition of employment, unless such referrals are made on a non- discriminatory basis, pursuant to an agreement entered into in conformity with the Act. WE WILL NOT cause or attempt to cause the above- named employer, its officers, agents, successors, or assigns, to discriminate against its employees , or appli- cants for employment with it, in the aforesaid or in any other manner with respect to their hire or tenure of em- ployment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce applicants for employment with such employer, or its employees, in the exercise of their rights under Section 7 of the Act. WE WILL make Frank H. Donlon, Jr., whole for any loss of pay he may have suffered because of the discrimi- nation against him. INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIP BUILDERS, AND HELPERS OF AMERICA, LOCAL 13, AFL. 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. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 345 Intermediate Report STATEMENT OF THE CASE Upon charges filed by Frank H. Donlon, Jr., an individual, the General Counsel of the National Labor Relations Board.' by the Regional D i rector for the Fourth Region (Philadelphia, Pennsylvania), issued a complaint dated July 31, 1952, against Local 13, International Brother- hood of Boilermakers, Iron Ship Builders, and Helpers of America, AFL: and John Kennedy, Its Business Agent, hereinafter referred to respectively as the Respondent Union and Respond- ent Kennedy,2 alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Sec- tion 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon each of the Respondents.3 With respect to the unfair labor practices the complaint alleged in substance that: (1) At all times since on or about May 27, 1951, Respondent Union has been party to, has maintained, and has enforced an arrangement, understanding, or agreement with B & W, whereunder, for work to be performed within the geographic jurisdiction of Respondent Union, applicants for employment must be approved for such employment by Respondent Union; (2jon or about June 14, 1951, Respondent Union, through Respondent Kennedy, directed Frank H. Donlon, Jr., to report for work at an installation for B & W, thereafter on or about the same date. Re- spondent Union, through Respondent Kennedy, directed Frank H. Donlon, Jr., not to report for work at said installation; thereafter on or about the same date, Respondent Union, through Respondent Kennedy, directed B & W, through its agents and representatives, td withhold em- ployment from Frank H. Donlon, Jr.; (3) as a result of the acts of Respondent Union-de- scribed immediately hereinabove, B & W did, on or about June 18, 1951, refuse employment to Frank H. Donlon, Jr., and has since that date refused employment to Frank H. Donlon, Jr.; and (4) by the acts described above, and by each of said acts, the Respondents did restrain and coerce and are restraining and coercing employees in the exercise of the rights guar- anteed employees by Section 7 of the Act, and by said acts the Respondents did cause an employer to discriminate against an employee in violation of Section 8, subsection (3) of the Act, and that by the whole of said acts described above Section 8 subsections (b) (1) (A) and (b) (2) of the Act. On August 7, 1952, the Respondent Union and Respondent Kennedy filed a joint ariswer in which in substance they denied knowledge of B & W's interstate affairs and demanded proof of same; admitted that the Union is a labor organization within the meaning of the Act, and that Respondent John Kennedy is its business agent; that the charging party herein was and is a member of the Union at all times material herein; denied that at all times since on or about May 27, 1951, Respondent Union has been party to, has maintained, and has enforced an arrangement , understanding, or agreement with B & W, whereunder, for work to be per- formed within the geographical jurisdiction of Respondent Union, applicants for employment must be approved for such employment by Respondent Union; concedes that the Respondents, "on or about June 14, 1951, through John Kennedy, notified Frank H. Donlon, Jr., that, in effect, work was available at an installation of B & W so that Frank H. Donlon, Jr., may, if he chose, endeavor to secure such employment"; 4 that "on or about the same date, the Re- spohdent John Kennedy notified Frank H. Donlon, Jr., that, in effect, there was no knowledge that Frank H. Donlon, Jr., was already employed and, therefore, had no need to seek other i The General Counsel and his representative at the hearing are referred to as the General Counsel. The National Labor Relations Board is herein called the Board 2On occasion the Respondent Union and the Respondent Kennedy are referred to herein as the Respondents. The Respondent Kennedy is also referred to as John A. Kennedy, which the undersigned finds is his true name. Consequently the undersigned on his own motion corrects the caption in the case, the pleadings, and the record as a whole to read "John A. Kennedy." 3 The charges, the caption of the complaint, and certain paragraphs refer to "Babcock & Wilcox Co., Party to aContract. " Babcock& Wilcox Co is referred to hereinafter as "B& W " Its role in the alleged unfair labor practices of the Respondents will be fully discussed here- inafter. 4Quoted portion sets forth paragraph 7 of Respondents' answer in its entirety 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment"; 5 and further specifically denies that the Respondents engaged in or were en- gaging in any of the unfair labor practices alleged in the complaint. Pursuant to notice a hearing was held on August 20, 1952, before James A. Shaw, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondents, and the charging party were represented by counsel. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the onset of the hearing the General Counsel moved to amend paragraph 11 of the complaint to read " . that employer Babcock & Wilcox refused to reemploy Frank H Donlon, Jr , from on or about June 18, 1951 to March, 1952"6 and in addition to add the following phrase to said paragraph, "within the jurisdiction of the Respondent Union." The motion to amend was granted by the undersigned At the close of the General Counsel's case-in-chief, counsel for the Respondents moved to adjourn the hearing until Friday, August 22, 1952, for the reason that he had a previous engagement in one of the local courts. The motion was granted by the undersigned. In the interim the undersigned was advised by the parties by telegraph that the Respondents did not choose to offer any evidence and desired to rest their case. Accordingly the under- signed on August 21, 1952, issued an order closing the hearing as of Wednesday, August 20, 1952. On September 17, 1952, the General Counsel filed with the undersigned a "Motion to Correct the Record." The motion is hereby granted. On or about September 25, 1952, the General Counsel and counsel for the Respondents filed briefs with the undersigned. They have been duly considered. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Upon the entire record in the case the undersigned finds that the Employer herein, Babcock & Wilcox Co., is a corporation organized and existing under the laws of the State of New Jersey with its principal offices in New York, New York. It is engaged in the manufacture and installation of steam generating plants throughout several States of the United States. Its principal manufacturing plant is located in Barberton, Ohio. In addition it owns and operates similar plants in the cities of Alliance, Ohio, and Beaver Falls, Pennsylvania, and in addition operates a brick plant in Augusta, Georgia. During the calendar year of 1951, it received the sum of $256,000 for erection work in the Commonwealth of Pennsylvania. In the past the Board has asserted jurisdiction over its business operations on numerous occasions.? From all of the foregoing, the undersigned is convinced and finds that the Employer herein, Babcock & Wilcox Co., is engaged in commerce within the meaning of Section 2 (6) of the Act. IL THE LABOR ORGANIZATION INVOLVED Local 13, International Brotherhood of Boilermakers, Iron Ship Builders, and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act As indicated above, the events with which we are concerned herein center around the em- ployment practices of The Babcock & Wilcox Co., and its relations with the Respondents in this regard. In the course and conduct of its business B & W requires the services of skilled workers. The procurement of such workers is absolutely essential if it is to remain alive in its chosen field, that is the manufacture, sale, and erection of steam generating plants throughout th. country. Over the years workers skilled in the various crafts essential to the manufacture, placement, and/or erection of tanks, boilers, superheaters, the like that are 5Quoted portion sets forth paragraph 8 of Respondents' answer in its entirety. Since the answer of the Respondents is not in form a general denial but for the most part specific denials of each of the alleged unfair labor practices, paragraph by paragraph, each commencing with the phrase, "It is denied," except as regards the paragraph referred to in this and footnote 4, the undersigned consequently concludes that by the language used in para- graphs 7 and 8 in said answer they constitute allegations ordinarily characterized as by way of "confession and avoidance," and they are so treated by the undersigned in his ultimate findings herein 6See infra. 7See, for example, the following cases: 8 NLRB 514; 52 NLRB 900; 61 NLRB 529 and 533; 65 NLRB 83; and 72 NLRB 1256. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 347 required in the completion of such plants have for the most part gravitated into the Union for their mutual aid and protection. In many communities over the country such workers are strongly organized. It is conceded by the Respondents herein that in the Philadelphia area such workers are "10016" organized and members of the Respondent Union. a It is in the light of this background that the events with which we are concerned herein occurred. Though there is no substantial evidence in the record of the existence of a written contract between B & W and the Respondent Union, the undersigned nevertheless is convinced and finds from the record as a whole that there was an arrangement or understanding between them to the effect that only members of the Union referred to B & W at the job site by Business Agent Kennedy would be considered for employment. This is evidenced by the undenied and uncon- tradicted testimony of Foreman St. John, and that of Martin Costello, B & W's superintendent in direct charge of the job involved herein. A resume of their testimony follows below. The pleadings and the record clearly show that the issues with which we are concerned herein center around the working rules of Local 13, and the activities and conduct of John Kennedy, its business agent. Consequently, no understanding of the issues could be had without reference to the "Constitution and By-Laws" of the International Union and the "Working Conditions and Scale of Wages of Local Lodge No. 13." which were in full force and effect at all times material herein.9 Moreover, the issues herein also concern the authority and con- duct of the foreman and steward who were working on the University of Pennsylvania job for B & W at the time of the alleged discrimination against the charging party herein, Frank H Donlon, Jr. Since any authority that either the foreman or the steward may have had stems from the "Working Conditions and Scale of Wages of Local Lodge No. 13," it is all the more important that this report comment at some length on this phase of the issues herein. The Respondent Union in order to carry on its affairs and render service to its membership maintains a business office in Philadelphia. The Respondent John A. Kennedy is in charge of the office in his capacity as business agent. 10 His authority as such stems from the inter- national Union's "Constitution and By-Laws" and from theprovisions set forth in the "Work- ing Conditions and Scale of Wages of Local Lodge No. 13." His duties as described in the "Constitution and By-Laws of the International," are as follows: BUSINESS MANAGERS Sec. 11. Business Managers may be elected in cities or localities where there are suf- ficient members to support such an officer. The duties of a Business Manager shall con- sist of organizing, negotiating, handling grievances under existing agreements, assigning members to work, collecting dues and such other duties as the Subordinate Lodge or the International President may require. He shall also perform the duties required of him under Sections 15 and 17 of this Article, in the supervision of Auxiliary Lodges. The Business Manager shall be bonded, as provided for in Article XIV of the International Lodge Constitution, and such bond shall be signed by the Business Manager and the President and filed with the President of the Subordinate Lodge. The working rules of Local 13 provide inter alia as regards the duties of the business agent and the stewards assigned to jobs by the business agent as follows: No. 6. It will be understood that the Business Representative's office in the localities in which the work is being erected will be notified before the start of any job, so that the Business Representative can furnish competent Foremen, Boilermakers, Welders and Helpers; and as much advance notice as possible is to be given by the Contractor. No. 7. The Business Representative shall have access to all jobs and it shall be his duty to appoint Foremen and Stewards on all job. No. 8. The Steward's duties shall be to settle all grievances that may arise on the job; if unable to do so he shall notify the Business Representative; if the Business Repre- sentative is unable to settle the grievance, the International Office shall be notified at once and give in detail a full report of said grievance. The Steward shall have authority to examine cards of all members employed as often as he deems necessary. Stewards shall see that the working rules of the local are enforced and that all safety rules of the state 8 See the comment in this regard in the Respondents' brief. 9 The International Union is not a party to this proceeding and reference to its constitution and bylaws is made solely for the purpose of clarifying the issues herein, particularly as regards the activities of Business Agent John A. Kennedy toReferred to in the International's "Constitution and By-Laws" as "Business Managers." 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where work is being performed are fully complied with. Steward shall not be empowered to call any strike or work stoppage. The Steward and the Foreman shall be the last men laid off. In addition to the above, the working rules provide the following as regards the foremen who are assigned to the jobs coming under the jurisdiction of Local 13: No. 3. All Foremen and Assistant Foremen shall be practical mechanics of the trade and must hold membership in the Local in the locality in which the job is being performed. There shall be a Foreman on each job and an Assistant Foreman after the first ten men, and an Assistant Foreman for each additional ten men thereafter, except, however, if the Company sees fit to provide additional Assistant Foremen. Orders to men on a jobwillbegiven only by Foremen and/or Assistant Foremen. There shall be a working Foreman up to five men and when the fifth man is employed, the Fore- man shall not work with the tools. Paragraph No. 17 of the "Working Rules and Scale of Wages of Local Lodge No. 13" further provides that: No. 17. Only members in good standing shall be employed on all jobs coming under the jurisdiction of Lodge No. 13. All men shall be hired through the Business Representa- tive of Lodge No. 13. [Emphasis supplied.] One of the principal duties of the business agent is to police contracts and/or working agree- ments between the Union and employees in the territory under the jurisdictional control of the Union. In the instant case Local No. 13 has geographical jurisdiction over 41 counties in the eastern part of Pennsylvania, which includes the city of Philadelphia. The record clearly shows that one of the most important deities of the business agent is to see that employers with whomLocal 13 has contractual arrangements, either written or oral, employ only members of the Union who are in good standing and that such employees be as- signed to the jobs in accordance with their position on the "out-of-woik" list which is kept in the Union 's office. The custom was, at all times material herein, for employees to report to the office as soon as a job was completed and register with one of the clerks in attendance so that his name would then be placed on the "out-of-work" list. When calls for workers are received from employers with whom the Union has contractual relations the business agent or someone under his supervision and direction goes to the "out-of-work" list and removes the name or names of those who are on top of the list, and the member or members thus selected are then sent to the job site. By this process each member on the list gradually reaches the top and jobs are assigned strictly m accordance with his position on the list. The obvious purpose of this system is to see that each member of the Union gets a fair "shake," so to speak, as jobs become available. Having thus determined who is entitled to the job, the business agent or his assistants in the office contact the member or members so selected, either personally or by telephone , telegraph, or some other means of communication . As indi- cated above, and as amply demonstrated in the record, it is the "out-of-work" list and the consequences which flow from its use by the Union and the Company that "are primarily at issue herein. 11 Frank H. Donlon, Jr., joined the Union sometime in 1940 and at all times material herein was a member in good standing. Like other members he conformed to the rules of the Union "Though the record contains much testimony as regards the internal affairs of the Union, it is for the most part in the form of "offers of proof" except as to a small portion of the testimony of Robert Burke, which went into the record without objection by any of the parties, the undersigned is of the opinion that such testimony should not be considered in his deter- mination of the issues herein. Primarily for the reason that to do so would in the long run do more harm than good and be of little or no value in effectuating the policies of the Act. More- over to do so would in the considered opinion of the undersigned be an unwarranted invasion of the rights of the Union as regards its internal affairs. As the undersigned sees it, even though there may have been dissensioh amongst the membership as regards the use or abuse of the "out-of-work" list, this is no affair of the Board It is not the function of the Board to police the internal affairs of unions It is assunied that as democratic organizations they have the capacity to police and clean up their own affairs if such be necessary, without any interference by the Board or any other instrumentality of Government. For these reasons the undersigned ignores all testimony in the record as regards what was said and by whom at meetings of Local 13. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 349 and entered his name on the"out-of-work"listas soon as a job to which he had been assigned was completed. Sometime in March 1951, he went on the "out-of-work" list. From that date until sometime in May 1951, he was referred to but 3 small jobs by Business Agent Kennedy, on which he worked a total of about 32 days and which he considered inadequate to support his family. As a consequence , Donlon went outside the jurisdiction of the Respondent Union and secured a job at Claymont , New Jersey , through Local No. 193 of Baltimore, Maryland. He was working as a foreman on this job on June 14, 1951. On that date Business Agent John A. Kennedy sent to him at his home, 1422 North 61st Street, Philadelphia , Pennsylvania, the following telegram: P.ETA167 PD=PHILADELPHIA PENN JUNE 14 354P (sic) Frank Donlon Jr 1422 NORTH 61 ST PHILA REPORT FRIDAY EIGHT AM AT PENNSYLVANIA UNIVERSITY COLLEGE POWER HOUSE 30TH AND SOUTH STS FOR MARTY COSTELLO JOHN A KENNEDY (437P) Donlon did not see the telegram until he returned to his home on the night of June 14, 1951. As soon as he read it he telephoned Joseph St. John, a brother union member , who he knew was the foreman on the job mentioned in Kennedy 's telegram. In the course of his telephone conversation with St. John, he told him about the job at Claymont, New Jersey, and asked St. John if it would be satisfactory for him to complete his work on that job, which was about finished , before reporting for work on the University of Pennsylvania job. St. John assured him that this was entirely satisfactory and for him to report either on Monday, June 18, or as soon as the Claymont, New Jersey , job was completed. On the next day, Friday, June 15, 1951, Kennedy called Donlon on the telephone at the Claymont job. According to Donlon 's undenied and uncontradicted testimony , which the undersigned credits , the following conversation between them occurred: Q. What next happened, with reference to this transaction? A. Well, when I got home the following evening--I beg your pardon. There came a tele- phone call in the midst of the day, while I was working, and the erector came and got me, and brought me over to the telephone, and it was Mr. John Kennedy on the telephone. Q. What day would that be? A. That would be Friday, the 15th, the same day I received this other telegram. Q. We aren't talking about another telegram yet. We only have one telegram in the record. A. This was the 15th. TRIAL EXAMINER SHAW: Now, you are talking about the telephone call? THE WITNESS: That's right, in the office of Merritt Chapman and Scott. Q. (By Mr. Summers) Was that a Philadelphia contractor? A. It was their office. Q. Was that the prime contractor? A. I believe so. Q. On the job9 A. He was the general contractor. Q. General contractor? A. That's right. TRIAL EXAMINER SHAW: All right, go ahead. A. (Cont'd) Mr. Kennedy said to me, "Frank Donlon?" I said "Yes," so he said "This is John Kennedy," and I said "What do you want with me?" He said "I sent you a tele- gram to go to work," and I said "I know." He said "I am telling you now you are not to go on that job," and I said "I have a tele- gram to go to work, and Ihavewaited a long while to go to work, and I am going to work." Q. (By Mr. Summers) Anything further in that conversation A. He said "No, you are not, because I am going to have you knocked off," and I said, "I am still going to work," and that ended the conversation. Upon his return home that evening Donlon found the following telegram from Kennedy await- ing him:'2 it The Respondents made much ado about the authenticity of the telegrams from Kennedy to Donlon, at the hearing herein and again in their brief which they filed with the undersigned after the close of the hearing The undersigned has considered their objections and contentions 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD P.ETA160 PD=PHILADELPHIA PENN 15 238P FRANK H DONLON 1422 NORTH 61ST ST PHILA DO NOT REPORT ON UNIVERSITY OF PENNSYLVANIA JOBMONDAY JUNE 18 AS THIS OFFICE DID NOT KNOW YOU WERE WORKING AT GENERAL CHEMICAL JOB JOHN A KENNEDY 316P On Monday, June 18, 1951, Donlon reported to Foreman Joseph St. John at the University of Pennsylvania , for work on the job that the Employer , B & W. was engaged in for that institu- tion. Upon arrival at the job site he met St. John and Charles Peterson , the steward assigned to the job by Kennedy. St. John said, "I have been given orders not to let you go to work ... by Kennedy and by Peterson ... Kennedy has called Peterson and told hun not to let you go to work. " Peterson, who was present, then said to Donlon , "Kennedy called me and told me not to let you start on this job." Staddmg nearby during the course of the conversation was Martin Costello , the erector or superintendent of the job . of whom more anon. Donlon's next contact with the Union was in the latter part of October 1951. At that time, according to Donlon's uncontradicted and undenied testimony which the undersigned credits, the following incident occurred: Q. Where did this happen, and about when? A. It was at 1321 Arch Street, in our office, our Union office. Q. And about when? A. It was in the latter part of October. Brother Burke was with me at the time. Q. In 1951? A. That's right, sir. Q. Now, what happened? A. I went in to see where I stood on the out-of-work list, and the girl said to me, "You are not on the out-of-work list." I said "I am not on the out-of-work list?" and she says "No." I said "Well, I was." Mr. Kennedy was there, and he had an inner office, and I said "Well. I would like to speak to him," so she went in and got Kennedy , and he came out, and I said "How come I am not on the out-of-work list?" He said, "Well, you have been working out in Jersey, and I took you off the out-of-work list." I said "I am paying my dues here , and I should be represented on that list." I said "I have to go out of my jurisdiction to get a job, and then come back here and find you took me off." And sohetookthepad,theout-of-work list, and threw it to me, and said "Sign that." I threw it back to him, and I said "I am not signing anything. I should be on the out-of- work list." He said "If you don't sign, you don't go to work." I threw it back to him, and that's when I went out and got a job with the pipefitters, in the shop- -the pipe shop. Q. That was out of your craft? A. That's right, sir. Following the above incident Donlon found it necessary to go outside his craft for employ- ment. Through a friend he secured a permit from the pipefitters' union to work as a pipe- fitter, and worked at that trade until sometime in March 1952. At about that time Donlon was advised by one Richard Burke, a personal friend and brother union member, that jobs were in this regard and again rejects them as being wholly without merit. Particularly because the uncontradicted and undenied testimony in the record completely refutes their contention as regards the authenticity of the telegrams Since Kennedy did not chose to testify at the hearing herein in face of the damaging testimony as regards his conduct and the activities with which we are concerned, it is most difficult to ascertain why the Respondents make such an issue of the admissibility of the telegrams in evidence. While it may be true that there have been oc- casions where the facilities of Western Union have been abused by unscrupulous persons, nevertheless, in the considered opinion of the undersigned, this is the extremely rare excep- tion and not the rule. Moreover, it is common and general knowledge that much of the business life of the nation is and has been conducted for generations by means of the telegraph For example, counsel for the Respondents themselves used the facilities of Western Union in their request for extension of time to file briefs in this proceeding The undersigned accepted and granted their request without question as regards the authenticity of their telegram that was presented to him for consideration through the processes of the Board. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 351 available in the craft at the Philadelphia Electric Company's plant at Beach and Palmer Streets in Philadelphia, Pennsylvania. The employer there was B & W. Donlon went to the job site and was put to work by the foreman on the job. The steward assigned to the job, one Blackwell, made no objections to his working in spite of the fact that he had neither a re- ferral slip to the job from Kennedy nor had been notified by him that he could work on the job. According to the record no further objections were made to Donlon's working at his trade by either Kennedy or any other responsible official of the Respondent Union. Another factor which merits consideration is the factthat at no time between June 18, 1951, and the date in October 1951 when Donlon and Kennedy had their dispute about the "out-of- work" list, did either Kennedy or any member of his staff contact Donlon, though they well knew that he was available for work within the jurisdiction of Local 13. This is true because he so notified St. John, Peterson, and Kennedy himself on or about the time he was denied em- ployment with B & W at the University of Pennsylvania job. Under such circumstances the undersigned is convinced that it is reasonable to infer that one of the reasons he was not referred to a job during this period was in retaliation for his defiance of Kennedy's authority to deny him employment on the job at issue herein. Concluding Findings From all of the above the undersigned finds that at all times material herein there existed an understanding or agreement between B & W, the Employer, and the Respondents to the effect that only members of the Union in good standing would be employed by the Employer on its jobs performed within the geographical jurisdiction of the Respondent (Local 13) Union, and that only employees cleared through and assigned to such jobs by Business Agent John A. Kennedy would be permitted to work on its jobs and placed on its payroll. This finding is but- tressed by the testimony of Martin Costello, the Employer's representative on the job at issue herein. Costello stood idly by and permitted the Respondent Union to discriminatorily refuse employment to the charging party herein, Frank H. Donlon, Jr. By his silence Costello ratified and adopted the Respondent's position in its successful attempts to deny Donlon employment because he chose to ignore Respondent Kennedy's instructions not to report for work at the job site. Moreover, the record clearly shows that Kennedy's action was predicated on his au- thority as business agent to regulate and select from the Respondent Union's "out-of-work" list members of the Respondent Union who were to be assigned to jobs within the Union's geo- graphical jurisdiction. By its silence the Employer, B& W, knowingly permitted the Respond- ents to usurp its normal rights to select its employees or discharge them. The mere fact that the Employer herein is not named as a party to this proceeding is of no importance, for the simple reason that it is enough if the facts show, and they do to a certainty here, that Donlon was denied employment because he chose to refrain from using the Respondents' "out-of-work" list and sought employment on his own initiative. The vice of the Respondents' position herein is the fact that they did successfully cause the Employer, B & W, to deny employment to Donlon, which if the Employer had independently engaged in such conduct would have clearly been violative of Section 8 (a) (3) of the Act. As the undersigned sees it , it is a violation of the Act if a union causes or induces an employer to violate Section 8 (a) (3) of the Act. As the undersigned sees it, B & W's refusal to employ Donlon without clearance with the Respondents of necessity strengthened their position in its control over its membership, and also their relationship with the Employer. In the considered opinion of the undersigned, the issues involved here are well stated in the Board 's brief filed in the United States Court of Appeals for the Second Circuit in N.L.R. B. v. The Radio Officers ' Union of the Commercial Telegraphers Union, A,F.L., 196 F. 2d 960. It well states the law, and for this reason an excerpt therefrom is set forth hereinbelow. i8 The company 's refusal to employ Fowler without respondent's clearance of necessity resulted in strengthening the position of respondent in its control over its members, and also improved its position in its dealings with the employer. Since respondent by enforcing compliance with its practices and rules became the all important factor in whether a given employee would be able to secure a position as a radio officer , nonmembers of necessity were encouraged to join respondent and live up to its membership requirements in order iSee 93 NLRB 1523. The undersigned , is not unmindful of the fact that this case is now be- fore the Supreme Court of the United States for review . However , he feels that under all the circumstances herein the reasoning of the Board in petition for enforcement before the Second Circuit is applicable to the factual situation found herein. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to obtain its benefits, and current members wereencouraged to maintain their membership in order to avoid respondent's hostility. The policy of the Act, however, except in situa- tions covered by the proviso to Section 8 (3), prohibits employers from aggrandizing the power of a union by permitting to it dictate the terms of employment as was done in the instant case. Respondent argued before the Board that membership in respondent was not encouraged because Fowler, as the Board found, was at all times a member, and the discrimination was based not on Fowler's lack of membership but rather on his failure to follow the luring hall procedure which respondent sought to impose. However, the Board has con- sistently held that the prohibition in Section 8(3) and 8 (a) (3) of the Act against discrimi- nation encouraging or discouraging membership in a labor organization extends not only to discrimination against employee for failure to maintain formal membership in a union but also discrimination against employees for failure to perform the various obligations imposed by unions as a condition of maintaining membership in good standing. The Courts have fully sustained the Board in this reasonable interpretation of the Act. Colonie Fibre Co. v. N. L. R. B., 163 F. 2d 65, 68-69 (C. A. 2); N. L. R. B. v. Newman, 187 F. 2d 488 (C. A. 2), enforcing 85 N. L. R. B. 725; N. L. R. B. v. Federal Engineering Co., 153 F. 2d 233, 235 (C. A. 6); Union Starch& Refining Co. v. N. L. R. B., 186 F. 2d 1008. 1011 (C. A. 7), certiorari denied, October 8, 1951; Local No. 2880, Lumber & Sawmill Workers Union v. N. L. R. B., 158 F. 2d 365 (C. A. 9). Accordingly, when, as in the instant case the discrimi- nation occurred for the purpose of enforcing compliance with respondent's practices on which retention of membership depended, such discrimination was in fact an encourage- ment of membership within the meaning of Section 8 (3). Moreover, the fact that the discrimination was applicable to Fowler as a member of the respondent, does not preclude a violation of Section 8 (3), for the discriminatory act equally encourages union member- ship whether directed against a member or a nonmember of a union. The collective bargaining agreement between respondent and the company provided that none of respondent's members could be employed without respondent's clearance. As we have seen, the company desired to employ Fowler both in February and April, and the only reason for its failure to do so was respondent's adamant refusal to issue Fowler the nec- essary clearances. Respondent's refusals, therefore, caused the discrimination against Fowler, and as the Board found, respondent thereby violated Section 8 (b) (2) of the Act which makes it an unfair labor practice for a labor organization "to cause or attempt to cause an employer" to unlawfully discriminate against an employee. By the conduct described above the undersigned finds that the Respondents herein independ- ently violated Section 8 (b) (2) of the Act. The undersigned also finds that the Respondents by refusing to clear Donlon for employ- ment with B & W, after he had been assured by Foreman St. John that he would be given em- ployment on the job involved herein, violated Section 8 (b) (1) (A) of the Act. This section of the Act makes it an unfair labor practice to restrain or coerce any employee in the exercise of his rights under Section 7 of the Act which includes the right to refrain from any or all con- certed activity. Although the undersigned has found above that there is no evidence of any written agreement between the Respondent Union and B&W, he has found thattherewas an arrangement or under- standing between them to the effect that only members of Local 13 would be hired on jobs within its geographical jurisdiction. Under such circumstances Donlon was not legally required to even belong to the Union, or to maintain membership therein, let alone conform to its hiring and employment practices with any employer. Consequently, he could seek employment wher- ever he pleased and he was not required to conform to Respondents' practice and use of its "out-of-work" list, or "hiring hall" policies (if one chooses to call the arrangement such). Hence, when the Respondents caused Frank H Donlon, Jr., to be denied employment by B& W on the morning of June 18, 1951, in an effort to compel him to conform, it restrained and coerced him with respect to his right as an individual to refrain from this form of concerted activity in violation of Section 8 (b) (1) (A) of the Act. Clearly such conduct constitutes restraint and coercion within the meaning of the Act. Here the conduct of the Respondents caused Donlon to be denied employment at the place of his choice, and is economic coercion at its worst. In such an atmosphere workers are not free to engage in or refrain from engaging in "concerted activities." Such power should not be exercised by either unions or employers. To permit unrestrained control over the means of livelihood of workers would in the considered opinion of the undersigned defeat the purposes of the Act as stated in its preamble both before and after its amendment. It places a premium on orthodoxy and discourages those amongst us who may choose to be "non-conformists," so to speak. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 353 In view of all of the foregoing , mcludmgthe use of the "out -of-work" list, which the under- signed finds to have been a hiring-hall procedure, also including the requirement that em- ployees be cleared with the Respondent Union, and of the Respondent Union's refusal to grant Frank H. Donlon , Jr., clearance and/or approve him for employment on June 18 , 1951, because of his refusal to conform to the "Working Conditions and Scale of Wages of Local Lodge No. 13," the undersigned concludes and finds that the Respondent Union and the Respondent John A. Kennedy caused the Employer, Babcock & WilcoxCo., to discriminate in regard to the hire of Frank H. Donlon , Jr., in violation of Section 8 (a) (3) of the Act and thereby the Respondent Union and the Respondent John A. Kennedy violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPONCOMMERCE The activities of the Respondents set forth in section III, above, occur ring in connection with the operations of the Employer, Babcock & Wilcox Co., described in section I, above, have a close, intimate , and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor practices, the undersigned will recommend that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Employer herein, Babcock & Wilcox Co., has discriminated in regard to hire and tenure of employment of Frank H. Donlon, Jr., at the request and demand of the Respondent Union and Respondent John A. Kennedy , its business agent , thus causing the Employer , Babcock & Wilcox Co., to so discriminate against Frank H. Donlon, Jr. The dis- criminatory action taken by the Respondents in respect to Frank H. Donlon, Jr., was based upon their hiring-hall practices (i.e., use of the Respondent Union's "out -of-work" list), which required employees to be cleared by the Respondent Union in its issuance of job-referral cards , permits , or assignment of employees to work for employers within the limits of its geographical jurisdiction as defined and described in its "Working Rules and Scale of Wages of Local Lodge No. 13." Since the vice of the discriminatory action taken in regard to Donlon arose from these practices , it will be recommended that the Respondents cease and desist from the practice of requiring employees of and applicants for employment with the Employer to obtain clearance of job referrals from the Respondent Union and Respondent John A. Kennedy. The problem of devising a remedy for the discriminatory action of the Respondents herein in their denying permission for Donlon to work for the Employer, Babcock & Wilcox Co., on its University of Pennsylvania job presents considerable difficulty, since that job was com- pleted on or about October 6, 1951 . Again the very nature of the business of employers with whom the Respondent Union has lawful agreements makes any recommendation for back pay extremely difficult for the simple reason that the jobs they have are of necessity of indefinite duration. The record clearly shows that members of the Union may work for any number of employers in the course of a calendar year at numerous locations throughout the territory under the Union's jurisdiction . In general, the record shows that as jobs are commenced em- ployees are placed on the payrolls of these employers and dropped therefrom as soon as the jobs are completed. Under such circumstances and upon the entire record in the case, the undersigned will recommend that the Respondents notify the Employer herein that they have no objections to its employing Frank H. Donlon, Jr., on any jobs that it currently may have in progress at the time this Intermediate Report is issued . It will also be recommended that,the Respondents notify any and all employers with whom it has contractual arrangements, written or oral, understandings or agreements , lawful or unlawful (within the meaning of,t'he Act), that they have no objection to their employing Frank H. Donlon, Jr., in any capacity either within or without thelcrafts over which the Union claims jurisdiction , historically or otherwise. As to back pay, the undersigned will recommend that the Respondent Union make Frank H. Donlon, Jr., whole for any loss of pay he may have suffered as a result of its discrimination against him by causing the Employer , Babcock & Wilcox Co., to deny him employment on the Univer- sity of Pennsylvania job in the city of Philadelphia, Pennsylvania , on June 18 , 1951, to the date of that job's completion on or about October 6, 1951 , less his net earnings 14 during l4Crossett Lumber Company, 8 NLRB 440 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said period. ib Now as regards the period after October 6, 1951, to the date uncertain in March 1952 when Donlon secured employment with the Employer herein, Babcock & Wilcox Co., at a job it was engaged in for the Philadelphia Electric Company at Beech and Palmer Streets in the city of Philadelphia, Pennsylvania, without any objection or interference of any kind from either of the Respondents herein. Since the record shows that on or about an uncertain date in the latter part of October 1951, Donlon went to the business office of the Respondent Union and at that time engaged in an argument with Respondent John A. Kennedy, the upshot of which was that Donlon requested that his name be withdrawn from consideration for any jobs that the Respondent might lawfully recommend him for employment with employers with whom the Respondent may have had lawful contractual arrangements, and thus by so doing made it impossible for either of the Respondents to lawfully recommend him for employment within the craft, and in the absence of any showing in the record that he attempted to seek employment at his trade within the geographical jurisdiction of the Respondent Union, the undersigned is of the opinion that under such circumstances no recommendation for back pay for said period is warranted. The undersigned takes this position because he feels that to recommend back pay for this period would be in the nature of a penalty and, in the long run, would not effectuate the policies of the Act, particularly since any power the Board has to recommend back pay for employees discriminated against by either employers or unions stems from its inherent power to "effectuate" the policy of the Act. Since Donlon was at the time of his argument with Respondent Kennedy a member in good standing in the Respondent Union, it would seem that the correction of any evils that existed in the conduct of the Union's affairs should come from its membership through democratic processes, and not by way of penalties imposed by the Board or other agencies of Government. For precisely this same reason the undersigned will not recommend that the Respondent Kennedy, the Union's business agent, be held personally liable for a proportional share of the back pay recommended above. Moreover, the undersigned does not interpret the Act to mean that a business agent of a union can be jointly liable with the union for liability for back pay. As the undersigned sees it they are not separate entities under the Act, but one and the same, the business agent being nothing more than the voice of the union or, legalistically speaking, its "creature" insofar as finan- cial liability is concerned. Though they might be civilly liable for a tort action under certain circumstances, such analogy is not pertinent or controlling here. True, the record clearly shows that Respondent Kennedy was responsible for the denial of employment to Donlon by the Employer, but the Act as the undersigned sees it does not authorize the Board to direct the agent of a labor organization to reimburse an employee for back pay lost as a result of dis- criminatory action against him. Section 10 (c) provides that in the Board's remedial order, it may require back pay of an "employer or labor organization." No reference is made to an agent of a labor organization, although Section 8 (b) specifically prohibits the commission of unfair labor practices by labor organizations and their agents . In view of the specific limita- tions imposed separately upon "a labor organization" and its "agents" by Section 8 (b), and the definition of a labor organization in Section 2 (5) of the Act, it may not be assumed that Congress intended the term "labor organization" as used in Section 10 (c) to include its "agents ." The coupling of the words "labor organization" and "agents" in Section 8 (b) by specific use of the terms and the ommission of "agents" from the relevant provision of Sec- tion 10 (c) evidences a statutory design to limit the obligation for back pay to employers and unions . The undersigned will accordingly not recommend that Respondent Kennedy reimburse Donlon for wage losses resulting from the discrimination against him. Upon 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, The operations of Babcock & Wilcox Co. constitute trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. Local 13, International Brotherhood of Boilermakers , Iron Ship Builders, and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, and John A. Kennedy is its business agent. 3. By causing the Employer, Babcock & Wilcox Co., to discriminate in regard to the hire and tenure of employment of Frank H. Donlon, Jr., in violation of Section 8 (a) (3) of the Act, the Respondent Union and Respondent John A. Kennedy have engaged in and are engaging in unf*r labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of the rights 15 F. W. Woolworth Company, 90 NLRB 289. NATIONAL ASSOCIATION OF BROADCAST ENGINEERS 355 guaranteed in Section 7 of the Act, the Respondent Union and Respondent John A. Kennedy have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. 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.] NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, C.I.O., HOLLYWOOD CHAPTER and NA- TIONAL BROADCASTING COMPANY, INC. Case No. 21- CD-31. June 4, 1953 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides that "whenever it is charged that any person has en- gaged in an unfair labor practice within the meaning of para- graph (4) (d) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, . . . " On October 29, 1952, National Broadcasting Company, Inc., herein called NBC, filed with the Regional Director for the Twenty-first Region a charge against National Association of Broadcast Engineers and Technicians, C.I.O., Hollywood Chap- ter,' herein called NABET, alleging that it had engaged in and was engaging in certain activities proscribed by Section 8 (b) (4) (D) of the amended Act. It was alleged, in substance, that NABET had induced and encouraged employees of NBC to engage in a strike or a concerted refusal to work in the course of their employment with an object of forcing or requiring NBC to assign particular work to employees who are members of NABET rather than to employees who are members of Inter- national Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, A. F. of L., Local 33, herein called IATSE. Pursuant to Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing upon due notice to all the parties. Thereafter, a hearing was held before Louis S. Penfield, hearing officer, on February 24-26, 1953. The hearing officer permitted IATSE to intervene on the basis of its claim to jurisdiction over the work tasks involved herein and its contract with NBC. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby af- firmed.2 All parties were afforded an opportunity to argue t The name of Respondent Union appears as amended at the hearing. 2 At the conclusion of NBC's presentation of its case on direct, NABET moved to dismiss the notice of charge. The hearing officer referred the motion to the Board. For the reasons stated hereinafter, the motion is denied. 105 NLRB No. 59.