Seabright Construction Co.

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SEABRIGHT CONSTRUCTION COMPANY and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, AFL UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 807, AFL and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Cases Nos. 6-CA- 584 and 6-CB - 168. March 23, 1954 DECISION AND ORDER On July 31, 1953, Trial Examiner James A. Shaw 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, the Respondent Company, the Respond- ent Union, and the General Counsel filed exceptions to the Intermediate Report, and the Respondent Company and the General Counsel filed supporting briefs . The Respondent Company's request for oral argument is hereby denied as the records, including the exceptions and briefs, adequately presents the issues and positions of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings , conclusions and recommendations of the Trial Examiner with the following modifications and additions. 1. The Trial Examiner found that the Respondents had an illegal hiring agreement , understanding , or arrangement conditioning employment on clearance from or membership in the Respondent Union. Without deciding whether there was an actual agreement as such between the Respondents, we agree with the Trial Examiner that the Respondents followed the unlawful practice of requiring applicants for employment as millwrights to obtain clearance from the Respondent Union as a condition of employment. Accordingly, we find that by their unlawful hiring practice the Respondent Company and the Respondent Union during and after March 1952 violated Section 8 (a) (3) and 8 (a) (1), and Section 8 (b) (2) and 8 (b) (1) (A) respectively.' IThe Trial Examiner also found that the Respondents did not discriminate against John Rexroad and Dallas Rae. As no exceptions have been taken to these findings, we hereby adopt the Trial Examiner 's recommendation to dismiss the complaint in these respects. 2 Eichleay Corporation v. N. L R. B , 206 F. 2d 799 (C A. 3); Philadelphia Iroi. Works, Inc., 103 NLRB 596; General Electric Company, 94 NLRB 1260. 108 NLRB No. 6. SEABRIGHT CONSTRUCTION COMPANY 9 2. The Trial Examiner found, and we agree, that the Respondents, pursuant to their unlawful hiring arrangement, discriminated against Kenneth 0. Kemp and Charles W. Alderman. The discrimination by both Respondents against Kemp is correctly set by the Trial Examiner as April 8, 1952. However, with regard to Alderman, the Trial Examiner dates the Respondent Union's liability from March 25, 1952, because it was then that Business Agent Hayes was notified by Foreman Crane that millwrights. were needed for the following day. And the Respondent Company's liability is set as of June 27, 1952, on the ground that no millwright work was available until that time and there was no substantial evidence that the Respondent Company had knowledge of Alderman's desire to be employed as a millwright until he formally applied to it on June 20, 1952. The date of the commencement of discrimination, however, does not under the circumstances herein depend upon the availability of jobs. For it is settled' that where there is a discriminatory hiring policy or practice, which has been communicated to applicants for employment, and no jobs are available at the time of the applications, discrimination dates from that time because it can be inferred that further application would be futile. It is clear from the record that Alderman applied to Business Agent Hayes for a job with the Respondent Company no later than March 15, 1952 ." Accordingly, we find that the discrimination against Alderman by both Respondents began at that time. However, under the back-pay order no actual back pay would start to accrue until work became available. 3. We find, as did the Trial Examiner, that the Respondent Union's refusal to clear Charles W. Alderman and Kenneth 0. Kemp for employment because they refrained from signing a statement that they were not members of the IAM and because they refused to resign from the IAM was conduct independently violative of Section 8 (b) (1) (A) of the Act in that it restrained and coerced employees. We also adopt the Trial Examiner's conclusions that the Respondent Company independently vio- lated Section 8 (a) (1) of the Act by the statements of Crane and Downing to Kemp that he should see Hayes about a job, and by Downing's further assertion that Kemp and other millwrights should organize a millwrights' union rather than remain in the IAM.5 THE REMEDY In view of the foregoing, we shall modify the remedial recommendations of the Trial Examiner as follows: 3Consolidated Builders , Inc., 99 NLRB 972; N. L R. B. v. A. B. Swinerton , et al., 202 F. 2d 511 (C. A. 9). 4The date given by Alderman is "the first part " of March 1952. We are assuming that he applied to Hayes no later than March 15, 1952. 5 Mundet Cork Corporation, 96 NLRB 1143. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall order the Respondents to cease and desist from the practice of requiring membership in or clearance by the Respondent Union or any labor organization. We shall also order the Respondents to jointly and severally make Kenneth 0. Kemp and Charles W. Alderman whole for any loss of earnings suffered by them by reason of the dis- crimination against them by payment to them of a sum of money equal to that which they would have earned in the em- ploy of the Respondent Company from March 15, 1952, in the case of Alderman , and April 8, 1952 , in the case of Kemp, to the date upon which their employment normally would have terminated , absent the discrimination , less their net earnings during the period . However, we shall provide that upon the Respondent Union ' s notification to the Respondent Company and to Kemp and Alderman that it has no objection to the reinstatement of Kemp and Alderman, the Union shall not be liable for any back pay accruing after 5 days from the giving of such notice.' In accordance with the exception of the General Counsel, we are requiring the Respondent Union to mail to the Regional Director for the Sixth Region signed copies of the notice attached hereto as Appendix B for posting , the Respondent Company willing, in all places where notices to employees are customarily posted. ORDER Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: I. Seabright Construction Company of Wheeling, West Vir- ginia, its officers , agents, successors , and assigns , shall: (a) Cease and desist from: (1) The practice of requiring employees or applicants for employment to obtain clearance from or be members of Local 807, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, as a condition of em- ployment, except as authorized by Section 8 (a) (3) of the Act. (2) Interrogating employees and prospective employees con- cerning union affiliation. (3) In any like or related manner encouraging membership in Local 807, United Brotherhood of Carpenters and Joiners of America , AFL, or in any other labor organization dis- couraging membership in International Association of Ma- chinists , AFL, or in any other labor organization , or other- wise interfering with, restraining , or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except as such rights may be affected by an agreement authorized under the Act. 6Pinkerton's National Detective Agency. 90 NLRB 205. SEABRIGHT CONSTRUCTION COMPANY 11 (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Offer to Kenneth O. Kemp and Charles W. Alderman employment as millwrights in any project of the Respondent Company in progress at the time of the issuance of this Order or as soon thereafter as such jobs are available within the geographic area serviced by the Respondent Union. (2) Upon request make available to the Board or its agents, for examination and copying , all payroll records, timecards, personnel records and reports, and all other records nec- essary to determine the amount of back pay and the right to employment under the terms of this Order. (3) Post in conspicuous places in all locations where notices to employees are customarily posted copies of the notice attached hereto as Appendix A.' Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being signed by a duly authorized officer or agent, be posted and maintained by the Respondent Company for a period of sixty ( 60) consecutive days. Reasonable steps shall be taken by the Respondent Company to insure that the said notice is not altered , defaced, or covered by other materials. II. Respondent Local 807, United Brotherhood of Carpenters and Joiners of America, AFL, Wheeling, West Virginia, its business agent, and all other officers , representatives, and agents, shall: (a) Cease and desist from: (1) The practice of requiring employees or applicants for employment with the Respondent Company, or any other employer, to obtain clearance from or be members of the Respondent Union, as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. (2) In any like or related manner causing or attempting to cause Seabright Construction Company, or any other em- ployer, to discriminate against employees within the meaning of the Act. (3) Otherwise restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except as such rights may be affected by an agreement authorized under the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Notify Seabright Construction Company, in writing, and furnish copies of such notification to Kenneth O. Kemp and Charles W. Alderman, that -it has no objection to their em- ployment. 7 In the event that this Order is enforced by 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." 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Post in conspicuous places in all locations where notices to members are customarily placed, copies of the notice attached hereto as Appendix B.8 Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being signed by a duly authorized officer or agent, be posted and maintained by the Respondent Union for a period of sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent Union to insure that the said notice is not altered, defaced, or covered by other material. (3) Mail to the Regional Director for the Sixth Region signed copies of the notice attached hereto as Appendix B for posting, Seabright Construction Company willing, in all locations where notices to employees are customarily posted. III. The Respondent Company and the Respondent Union shall make whole Kenneth O. Kemp and Charles W. Alderman in the manner set forth in the Remedy herein. IV. The Respondent Company and the Respondent Union shall each notify the Regional Director for the Sixth Region, in writing, within ten (10) days from the date of this Order what steps they have taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondents, in violation of Section 8 (a) (1) and (3) and Section 8 (b) (2) and (1) (A) of the Act, respectively, discriminated against John Rexroad and Dallas Rae. Members Murdock and Beeson took no part in the con- sideration of the above Decision and Order. BSee footnote 7, supfa• 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 NOT interrogate employees or prospective employees concerning union affiliation. WE WILL NOT require employees or applicants for employment to obtain clearance from or be members of Local 807, United Brotherhood of Carpenters and Joiners of America , AFL, or any other labor organization, as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT discourage membership in International Association of Machinists , AFL, or in any other labor organization. SEABRIGHT CONSTRUCTION COMPANY 13 WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL offer to Kenneth O. Kemp and Charles W. Alderman employment as millwrights in any project of the Seabright Construction Company now in progress or as soon as such jobs are available within the geographic area serviced by Local 807 , United Brotherhood of carpenters and Joiners of America, AFL. WE WILL make whole Kenneth O. Kemp and Charles W. Alderman for the discrimination against them. All our employees are free to become , remain, or to re- frain from becoming or remaining, members of the above- named Unions , or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee or applicant for employment because of membership in or nonmembership in any such labQr organization. SEABRIGHT CONSTRUCTION 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 TO ALL MEMBERS OF LOCAL 807 , UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT cause or attempt to cause Seabright Construction Company, or any other employer, to re- quire employees or applicants for employment to obtain clearance or job referrals from us as a condition of em- ployment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause Seabright Construction Company, or any other employer, to dis- 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminate in any manner against employees or applicants for employment in violation of Section 8 (a) (3). WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of Sea- bright Construction Company or of any other employer in the exercise of rights guaranteed under Section 7 of the Act. WE WILL notify ^Seabright Construction Company, in writing, and. furnish copies of such notification to Kenneth 0. Kemp and Charles W. Alderman, that we have no objection to their employment by the said company. WE WILL make whole Kenneth O. Kemp and Charles W. Alderman for the discrimination caused against them. LOCAL 807, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization Dated ........... By .................... ......... (Title of Officer) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges filed May 22 , June 24, and December 8 , 1952, the International Association of Machinists , AFL, herein called the Machinists or the LA.M., the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued his complaint dated December 19 , 1952 , against Seabright Construction Company , i herein called the Respondent Company, and United Brotherhood of Carpenters and Joiners of America, Local 807, AFL, herein called Respondent Local 807, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3), Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat . 136, herein called the Act. Copies of the charges and complaint, together with an order consolidating the cases and notice of hearing, were duly served upon the parties. With respect to the unfair labor practices , the complaint alleged in substance that on certain dates in March and April 1952, the Respondent Company by its officers , agents, representatives , and employees , pursuant to an agreement or understanding with Respondent Local 807, did refuse and continues to refuse to employ Charles Alderman , John Rexroad, Dallas Rae, and Kenneth O. Kemp, because they were not members of Local 807 and because they were members of LA.M. and in order to discourage membership in the LA.M., that the Respondent Company by its officers , agents, representatives , and employees , including, but not limited to, its agents , Glenn Crane, William Downing, and Joseph Lyle, did on or about March 1, 1952 , and at various times thereafter up to and including the present time, permit, authorize, instigate, and acquiesce in the following acts and conduct : (1) Statements and IThe appearance sheet in volumes I and II of the official transcript of the record shows John Cinque, Jr , as appearing on behalf of the International Association of Machinists. This is in error. He appeared and participated in the hearing as counsel for the Respondent, Sea- bright Construction Company. The record is hereby corrected accordingly. SEABRIGHT CONSTRUCTION COMPANY 15 expressions tending to discourage concerted activities on the part of Respondent Company's employees for the purpose of collective bargaining and other mutual aid or protection, (2) statements and expressions tending to discourage membership and activities among Re- spondent Company's employees in the LA.M. The complaint alleges in substance that on various dates in March and April 1952, and at all times thereafter , Respondent Local 807 did and continues to attempt to cause and in fact did cause the Respondent Company to refuse to hire Charles W Alderman, John Rex- road, Dallas Rae, and Kenneth O. Kemp in violation of Section 8 (a) (3) of the Act, that Respondent Local 807, by its officers, agents , representatives, and members, more par- ticularly by its agent, W. A. Hayes, did on or about February 24, 1952, threaten the said Charles Alderman and the said John Rexroad with continued refusal to grant clearance to them unless they disavowed membership in the L A. M. The complaint further alleges that by the above-described conduct the Respondent Coin- pany violated Section 8 (a) (3) and (1) of the Act, and Respondent Local No. 807 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. In due course both the Respondent Company and Respondent Local 807 filed their respec- tive answers to the complaint, in each of which they in substance denied the commission of any of the alleged unfair labor practices. Pursuant to notice a hearing was held on March 11 and 12, 1953, before James A. Shaw, Trial Examiner duly designated by the Chief Trial Examiner All parties were represented by counsel and participated in thehearing. Fullopportunity 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 counsel for Respondent Local 807 moved to dissolve the Regional D'irector's order consolidating the cases herein. The motion was denied by the undersigned. Counsel for Respondent Local 807 also moved to revoke a subpena duces tecum served upon one W. A. Hayes, business agent of Respondent Local 807, this motion was likewise denied by the undersigned. At the close of the General Counsel's case-in-chief counsel for the respective Respondents moved to dismiss the complaint in toto; their motions were denied by the undersigned without prejudice to their renewal at the close of the hearing. Accordingly, both renewed their motions to dismiss the complaint at the close of the hearing . Ruling there- on was then reserved by the undersigned. They are hereby denied in part and granted in part to the extent shown and discussed hereinafter. The undersigned also advised the parties at the close of the hearing of their right to argue orally before him in support of their respective positions. Only the General Counsel availed himself of this opportunity. The parties were also advised by the undersigned of their right to file either proposed findings of fact and conclusions of law or briefs in support of their respective positions. Counsel for the Re- spondent Company alone availed himself of this opportunity His brief was received by the undersigned on or about April 24, 1953, and he has given it due consideration. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT At the hearing herein the parties entered into the following stipulation as regards the busi- ness of the Respondent Company: For the purposes of the above-entitled proceeding only, the following is hereby stipu- lated and agreed upon by and among John Cinque, Jr.. Esquire, attorney for Seabright Construction Company, hereinafter called the Company, Francis X. Ward, Esquire, attorney for Local 807, United Brotherhood of Carpenters and Joiners of America, A. F. L., hereinafter Galled Local 807, and Joseph C Thackery, Counsel for the General Counsel, National Labor Relations Board, it being specifically agreed and understood, however, that this stipulation will not preclude the Company, Local 807, or the National Labor Relations Board from offering additional or other evidence as to the matters herein set forth. 1. The Company is and has been for a long period of time a West Virginia corporation with its principal office located in the City of Wheeling, West Virginia. The Company is engaged in the general construction business within the States of West Virginia and Ohio and the Commonwealth of Pennsylvania. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 During the past twelve-month period the Company engaged in construction projects valued in excess of $ 2,000,000 in the States of West Virginia and Ohio and the Common- wealth of Pennsylvania The Company purchased raw and other materials for use at its various construction sites in the states aforesaid of a value in excess of $ 1,000,000, of which materials approximately $500,000 worth was shipped from points outside the respective states in which the construction sites were located. The Company stipulates and agrees that it is engaged in commerce within the meaning of the National Labor Relations Act, as amended, and is subject to the jurisdiction of the National Labor Relations Board. Upon the foregoing and the entire record considered as a whole, the undersigned finds that the Respondent, Seabright Construction Company, Wheeling, West Virginia, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act IL THE ORGANIZATIONS INVOLVED International Association of Machinists , AFL, and United Brotherhood of Carpenters and Joiners of America, Local 807, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Foreword We are primarily concerned herein with the labor policy followed in the construction industry in the Ohio River Valley from Pittsburgh, Pennsylvania, to around Parkersburg, West Virginia, and to some extent on the Ohio side of the river. The immediate problem facing us, as the pleadings indicate, concerns particularly the hiring practices of both contractors and labor organizations in the construction industry in and around Wheeling, West Virginia As indicated in the pleadings , and in particular the caption of the complaint, 2 labor organizations are involved, the International Association of Machinists, AFL, and the United Brotherhood of Carpenters and Joiners of America, Local807, AFL. The age-old dispute between these 2 labor organizations , both affiliates of the American Federation of Labor, as regards which organi- zation shall control the millwrights on construction jobs is the root of the alleged "evils" which precipitated the charges, thecomplaint, and thehearing herein It is a matter of common knowledge that the Carpenters has consistently contended that millwrights traditionally belong in the Carpenters' Union. Its claim is based upon the theory that decades ago the installation and erection of machinery was done by members of that craft. On the other hand the Machinists for many years, particularly since the advent of the so-called "machine -age," mass-produc- tion lines, and in general the modernization of industry, has claimed that such work is better handled by mechanics skilled in the use of the tools traditionally used by craftsmen who constitute the rank-and-file of its organization . The term "millwright," generally speaking, means a person or an employee who installs , erects, or " sets up," machinery for use in industrial plants and similar projects for either public or private use The construction project which engendered the alleged unfair labor practices was the con- struction of an industrial plant near Natrium, West Virginia, for the Columbia Chemical Corpo- ration, a subsidiary of the Pittsburgh Plate Glass Company, by the Respondent, Seabright Construction Company, of Wheeling, West Virginia. The project is referred to throughout the record as the Natrium job, and it will be referred to herein as such The overall picture of the Natrium job is, in the considered opinion of the undersigned, best told in the undenied and uncontradicted testimony of Edson Buehler, chief construction engineer for the Columbia Chemical Corporation. Buehler had general supervision over all operations at Natrium, including all erection and construction work. For the most part the work was performed by approximately 19 contractors who participated atone time or another in the construction of the plant. Some of the contractors worked under what is referred to in the record as "Time and material" or "cost-plus" contracts, others under "lump sum" contracts, and some few under other types of contracts with which we are not concerned herein The Respondent Company worked under a "Time and Material Contract." As the undersigned sees it, the Respondent Company was under contract to erect the plant and install certain of the machinery that was to be used therein. SEABRIGHT CONSTRUCTION COMPANY 17 The Respondent Company's activities were under the direct supervision of Superintendent Joe Lyle. Under his supervision was Carpenter Foreman Glenn Crane. At all time material herein William S. Downing, of Bellaire, Ohio, was the president of the Respondent Company, and in active charge of all its operations. According to Buehler, it was his policy to meet every Friday afternoon with representa- tives of all the contractors engaging in work on the project. At this time the work for the coming week was discussed and plans made accordingly For example, if machinery was to be erected then the Respondent Company could lay plans for the securing of millwrights to handle the job. B. The organizational efforts of the Machinists The foregoing findings are predicated upon the uncontradicted and undenied testimony of Pete MacCagno, a representative of the LA.M. His testimony for the most part deals with the efforts of the LA. M. to organize the millwrights in the Ohio River Valley in the latter part of 1951 and the early part of 1952. According to MacCagno, he first contacted employees of the Respondent Company in November 1951 at a construction job at Shadyside, Ohio, for the Kaiser- Frazer Corporation. After several weeks of organizational work among millwrights employed by the Respondent Company (and presumably other contractors), MacCagno met with Mr. William S. Downing, president of the Respondent Company, sometime in the early part of March 1952. During the course of the interview MacCagno informed Downing that the LA.M. represented a ma- jority of the millwrights at the Natrium, West Virginia, job,z and requested that he rec- ognize it as their exclusive bargaining agent. Downing neither agreed nor refused to do so. The remainder of their conversation dealt with generalities, particularly as regards the jurisdictional aspects of the situation About a week later MacCagno and Downing met again. At this meeting MacCagno renewed his request for recognition Downing asked him if the I. A. M. was affiliated with the Building and Trades Department of the A. F. L., commonly called the Building Trades Council Mac- Cagno told him that it was not, and pointed out to him that this was unnecessary under the Act. Nevertheless Downing told MacCagno that the Respondent Company could not and would not recognize the I. A. M. as the bargaining agent for the millwrights since they were not members of or affiliated with the Building and Trades Council. He also told MacCagno that his relations with the Building and Trades Council was very good, and that his Company had not been involved in a labor dispute for the past 8 years. Downing then stated to MacCagno that the net result of the I. A. M's efforts in the Ohio River Valley was the creation of trouble and disturbance for all the contractors in the area, and suggested that it get out of the build- ing trades field. He then told MacCagno that as far as his Company was concerned (that is, the Respondent Company herein), it would continue tocarry out and follow its long-established practice of employing members of the Building and Trades Council. At the same time Downing emphasized the fact that he, i. e., the Respondent Company, would not employ anyone from the I. A. M. because of the fact that they were not members of the Building and Trades Council.3 As indicated above, MacCagno's testimony stands uncontradicted and undenied in the record, and is credited by the undersigned. The "By-Laws of Local Union No 807" were introduced in evidence by the General Counsel through the witness W. A. Hayes who at all times material herein was the business agent of Respondent Local 807, and of whom more anon hereinafter Article Eleven of the bylaws deals specifically with millwrights Section 1 thereof states, inter alia, "the Busi- ness Agent shall have the authority to place key Millwrights as he sees fit." Article Twelve, section 2, provides that "No member of this Local 807 shall work with nonunion carpenter or millwright." The importance of these provisions will be apparent hereinafter. 2Though the LA.M. call such craftsmen "Erection and Construction Machinists," the under- signed will nevertheless refer to them as millwrights since that is the usual and ordinary descriptive title ascribed such craftsmen. 3 While it is true that there is no allegation in the complaint as regards a violation of Section 8 (a) (5) of the Act, nevertheless MacCagno's testimony goes right to the heart of the 8 (a) (3) and (1) and the 8 (b) (2) and 8 (b) (1) (A) allegations therein, for reasons which will be apparent hereinafter. It was for this reason that theundersigned permitted the testimony to stand in the record notwithstanding the objection of the Respondents. 339676 0 - 55 - 3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The "understanding " or "agreement" between the Respondents As indicated above, it was the practice for contractors in the construction industry when in need of workers to deal directly with the business agents of the various locals which made up and constituted the Building and Trades Council in Wheeling . West Virginia. The Council itself consisted of the various craft unions which constituted the Building and Trades Department of the A. F.L. Typical of how the Council operated throughout the Ohio River Valley at all time material herein is best told in the uncontradicted and undented testimony of Justus Suter, a witness called on behalf of the General Counsel His testimony in this regard is fully credited by the undersigned. According to Suter he was employed on a job in Follansbee , West Virginia , at the time of the steel strike in the latter part of June 1952 . The strike threw him out of work , and as a result he went to Wheeling, West Virginia, to see about a job At this time Suter was a member of Local 2235 of the Carpenters Union, Pittsburgh, Pennsylvania, and Local 907 of the LA.M., having joined the latter on January 8, 1952 Upon arrival in Wheeling , West Virginia , he contacted W. A. Hayes, business agent of Respondent Local 807 The reason lie went to see Hayes was that he was well aware of the "closed shop" conditions in the construction industry, particularly as then practiced on the West Virginia side of the Ohio River Valley 4 Suter asked Hayes for a job and was advised by him that no jobs were available at that time but that lie would keep him in mind Suter then gave Hayes his name and address During the course of their conversation Hayes asked Suter if he belonged to the LA.M. He told him that he did not Hayes then asked him if he knew Kenneth O. Kemp, of whom more anon, and Roy Doty, and he said no Hayes then went on to relate that these two gentlemen were causing a lot of trouble about the LA.M., and that sooner or late "they was going to get into something they couldn ' t handle " Hayes also told Suter that all millwrights had to go through the Paden City Local, i.e , Respondent Local 807 , and that all applicants for jobs as millwrights had to sign an affidavit that they did not belong to. the "Machinists" before they could go to work. Suter then signed the affidavit referred to by Hayes.s At the time Suter talked to Hayes he was what is known as a "permit man." Under the "permit system" Suter continued to pay his dues to Local 2235, Pittsburgh, Pennsylvania, but could work at his trade in the geographical jurisdiction of Local 807 under a "permit" from it to do so. The day after Suter had the above-described conversation with Hayes he went to work for the Respondent Company. On cross-examination by counsel for the Respondent Company, Suter testified in substance that he never applied to the Respondent Company for a job, and that the only person he dis- cussed employment with was Respondent W. A. Hayes, the business agent of Respondent Local 807. Suter went to work for the Respondent Company on June 27, 1952, and worked continuously as a millwright for it until he was laid off for lack of work sometime in the early part of February 1953. The Alleged Discriminatory Refusal of the Respondent Company to Hire Charles Alderman, John Rexroad , and Dallas Rae As indicated above the General Counsel alleges in substance in his complaint that the Re- spondent Company discriminatorily refused to hire Charles Alderman, John Rexroad, and Dallas Rae on or about March 24, 1952, because Respondent Local 807 refused to clear said employees for employment with it because of their membership in the I.A.M., and that the discriminatory refusal to hire said employees was in accordance with and pursuant to an 4Tlie record shows that Suter actually contacted Hayes on the job site at Natriun, West Virginia; however, since Wheeling, West Virginia, is the seat of the Respondent Union's activities and is the situs of the Building and Trades Council that controls the labor market in the construction industry in the locality, the undersigned will refer to the entire geo- graphical area as "Wheeling, West Virginia," when he feels it is necessary to do so for descriptive purposes. ., f1 ough referred to in the record as an "affidavit," it is not such an instrument, but merely a statement to the effect that the signator is not a member of the "Machinist Union" or any other union not approved by the United Brotherhood of Carpenters and Joiners of America. SEABRIGHT CONSTRUCTION COMPANY 19 understanding or agreement between the Respondents that only referrals from Respondent Local 807 would be employed on the Natrium job. Sometime in the early part of March 1952, Alderman accompanied by Rexroad6 went to see Hayes about getting jobs as millwrights on the "Natrium" job. In the course of the conversa- tion Mayes told Alderman that the Respondent Company would soon need millwrights at the Natrium job. He also told Alderman that he as well as others had made a mistake by joining the I. A. M. Nevertheless he told Alderman that he would call them (Alderman and Rexroad) as soon as the Respondent Company was ready to use millwrights on the job. On Monday, March 24, 1952, Alderman, Rexroad, and Rae went to the job site at Natrium and informed the guard that they wanted to see Glenn Crane, the carpenter foreman, about a job. The guard told them that Crane was out in the plant and suggested that they wait around the guardhouse until he came around that way, which they did. Shortly thereafter Crane came by. Since none of the 3 knew Crane, the guard introduced them to him. Alderman as spokesman for all asked Crane for jobs as millwrights. Crane told him that he had none. He also said that as of that time the Company had only 2 millwrights on the job, and that he had only about 2 weeks' work for them. In the early part of the conversation Alderman told Crane that he wanted a job as a millwright. After Crane told him that no such jobs were available, Alderman said, "I'm also a member of the Machinist, belong to them." Crane's answer to this "after- thought" of Alderman's was the same, that "he wouldn't have any work for them." Sometime in April 1952, Alderman again approached Business Agent Hayes about a job as a millwright. During the course of their conversation Hayes told him in substance that nobody would get a job in the "valley" until he signed an "affidavit" to the effect that he was not a member of the I.A.M. As the undersigned sees it, neither Alderman, Rae, nor Rexroad gave Crane their names and addresses for future reference at the time they met him at the Natrium job on Monday, March 24, 1952. John Rexroad, who was with Alderman and Rae at the time they met with Crane testified as follows concerning the incident: Q. Did you ever go to Natrium, West Virginia, to try to get a jobs A. I did. Q. Who went with you? A. Mr. Alderman and Mr. Rae. Q. Who did you talk to when you got there9 A. The fellow that was introduced to us was a fellow by the name of Crane. Q. Is that Glenn Crane A. That's right. Q. What job did he have A. He was supposed to be carpenter foreman. Q. Carpenter foreman? A. Yes, sir. Q. Did you talk to Mr. Crane or did someone do the talking for you? A. Mr. Alderman did all the talking. Q. What did Alderman say? A. He asked him if there was going to be any work for millwrights. Q. What did Crane say A. He said he only had two millwrights working and he was going to lay them off in a few days. Q. Did Alderman say anything about whether or not you people were in the Machinists' Union? A. Not that I remember. Q. Did you ever apply for a job atNatrium after that, Mr. Rexroad7 After you had this conversation with Mr. Crane, did you apply again later or not? A. No. According to Glenn Crane, the carpenter foreman on the Natrium job, he met Alderman, Rexroad, and Rae for the first time on March 24, 1952, under the circumstances described by Alderman, above. His testimony in this regard was as follows: 6Alderman took Rexroad along with him in his car to see Hayes, but the latter did not go into the house and took no part in the above conversation. 2 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now, did you know or do you know a Mr. Alderman, a Mr. Rexroad , and a Mr. Rae? A. I met Mr. Alderman one time. There was a man that introduced himself as Mr. Alderman to me. Q. And did you know him at that time? A. I did not know him. Q. And when he introduced--what did he ask of you? A. He asked me if I were needing any millwrights at that particular time. Q. And what was your reply to him, sir? A. "No, sir." Q. Did Mr. Alderman state to you at that time, or at any time, that he was a member of the Machinists ' Union? No, sir. Was there anyone else with Mr . Alderman? There was two other fellows with Mr. Alderman. Did either of those individuals speak to you? Not a word. And where did this conversation with Mr. Alderman take place? It was north of the office at Pittsburgh Plate. At Pittsburgh Plate Glass? Yes, sir. And that's at Natrium , West Virginia? Crane further testified that on March 26 , 1952, Roy J. Robinson and Richard Dye were hired as millwrights on the Natrium job under the following circumstances. On the evening of March 25, 1952, he was notified by Joseph Lyle, the Respondent Company's superintendent on the job , that two additional millwrights would be needed on the job the next morning, March 26, 1952 , to install machinery. According to Crane the Respondent Company's hiring policy insofar as millwrights were concerned was that Buehler, the general construction superintendent for the Columbia Southern Chemical Corporatioh , the real employer on the Natrium job, would notify Joseph Lyle, the Respondent Company 's superintendent, when millwrights wereneeded , and the latter would then notify him , as the carpenter foreman on the job, to hire them.7 Buehler 's testimony as regards the overall picture of the Natrium job has been set forth above, and will not be reiterated here. At the hearing herein the General Counsel offered in evidence a list of all the millwrights employed by the Respondent Company between January and August 1, 1952. It follows below: AUGUST 13, 1952 MILLWRIGHTS EMPLOYED BY THE SEABRIGHT CONSTRUCTION COMPANY AT NATRIUM, WEST VIRGINIA ON ITS CONTRACT WITH COLUMBIA-SOUTHERN CHEMICAL CORPORATION FROM JANUARY 1, 1952, AUG. 13, 1952. Date Hired Termination date Harold Newland 1/3/52 6/24/52 Orland Robinson 1/3/52 4/24/52 Roy J. Robinson 3/26/52 4/24/52 Richard Dye 3/26/52 4/24/52 James Cokeley , Fore . 4/22/52 6/23/52 Frank Trost 4/21/52 5/20/52 C. Mankins 4/28/52 5/20/52 E. B. Eddy 4/25/52 5/20/52 Justus Suter 6/27/52 Roy Doty 7/22/52 Crane further testified that neither Alderman , Rexroad, nor Rae left their names and addresses with him at the time he met them on the afternoon of March 24, 1952. 7Though Crane testified as regards the hiring of one W. O. Wright as a millwright at the plant gate, the undersigned considers this incident as of little importance in his ultimate findings herein for the reason that the record clearly shows that such practice was the "rare" exception rather than that generally followed by the Respondent Company in the hiring of not only millwrights but all other craftsmen as well. SEABRIGHT CONSTRUCTION COMPANY 21 As indicated above, Buehler notified Lyle on the evening of March 25, 1952, that 2 additional millwrights would, be needed to set some newly arrived machinery the next morning, March 26, 1952. According to Crane, Lyle then notified him in this regard and he in turn called the business agent of Local 807 for 2 millwrights. As the undersigned interprets the record, the business agent of Local 807, W. A. Hayes, acting in pursuance to Crane's request, got in touch with millwrights Roy J. Robinson and Richard Dye, both of whom were members of Local 807, and told them to report at the Natrium job on the morning of March 26, 1952, which they did. As the undersigned sees it, there were no millwright jobs available at the time Alderman, Rexroad, and Rae talked to Glenn Crane on Monday, March 24, 1952. This conclusion is predi- cated on the credible testimony of General Superintendent Buehler and Carpenter Foreman Glenn Crane, and the documentary evidence submitted by the General Counsel consisting of a list of all the millwrights employed by the Respondent Company between January 1 and August 1, 1952. The undersigned also concludes and finds from all of the above that when Alderman, acting as spokesman for himself, Rexroad, and Rae, had their interview with Carpenter Foreman Glenn Crane, he first asked Crane about jobs for "Millwrights" and did not mention the union affiliation of either himself, Rexroad, or Rae, but that when Crane told him that no such jobs were available he then said he was also a "machinist." True, both Alderman and Rae empha- sized in their testimony before the undersigned that Alderman told Crane that he was a mem- ber of the "Machinists," but on the other hand Rexroad testified to the effect that Alderman made no such statements to Crane. Again, Crane emphatically denied that Alderman told him that he was a "member" of the "Machinists Union." The undersigned saw all four witnesses and observed their demeanor while testifying before him. In his considered opinion, Crane's accountofwhat transpired at the time is the more re- liable, and consequently he credits it in its entirety. A controlling factor in the undersigned's, finding in this regard is that Alderman in testifying about the incident left the impression that if he actually did tell Crane that he was a member of the I.A.M. it came as an ' after- thought," after Crane had (truthfully) told him that no millwright jobs were available, and was a "defensive maneuver" in view of the jurisdictional dispute between the Carpenters and Machinists Union over millwrights. In other words if he could not secure a job as a "Carpen- ter" millwright then he might do so by posing as a "Machinists" millwright, since he at all times material herein held membership in both unions. Concluding Findings To begin with the undersigned is convinced that the issue as regards the allegation in the complaint to the effect that there existed at all times material herein an agreement , under- standing, or arrangement between the Respondent Company and Respondent Local 807 that, inter aha, all millwrights employed by the Respondent Company at its Natrium, West Virginia, job would first have to obtain clearance from Respondent Local 807 before they would be hired and/or employed as such employees must be disposed of at this time. In his considered opinion such an agreement or arrangement did exist, and was in full force and effect at all times ma- terial herein. His reasoning in this regard is primarily predicated upon the uncontradicted, undenied, and credible testimony of the witness Pete MacCagno, which has been set forth in detail above. While it is true that President Downing of the Respondent Company testified that he had never seen the bylaws of Respondent Local No. 807, nevertheless he was not queried by counsel as regards the existence of an agreement or understanding with Respondent Local No. 807. Consequently the undersigned finds that at all times material herein there existed a mutual agreement, understanding, or arrangement between the Respondents to the effect that only members and/or permit holders cleared through Respondent Local 807 would be employed by the Respondent Company at its Natrium, West Virginia, operations for the Columbia Chem- ical Corporation, a subsidiary of the Pittsburgh Plate Glass Company. The undersigned fur- ther finds that the agreement or understanding between the Respondents as applied, enforced, or practiced by Respondents amounted to what is commonly called in Board parlance a "pref- erential hiring hall," and that Respondent Local 807 so applied its bylaws and/or working rules as explained and set forth in its official bylaws in a discriminatory manner against members of other labor organizations , here the I.A.M., and/or persons interested in other labor organizations , and by so doing caused the Respondent Company to deny employment to qualified applicants, in the mode and manner described hereinafter.8 8 In the case of Kenneth O. Kemp, of whom more anon hereinafter. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned has found above that at all times material herein there existed an agree- ment, understanding , or arrangement between the Respondents to the effect that only members of Respondent Local 807 would be considered for employment as millwrights . He has also found above t iat as part and parcel of said agreement , understanding , or arrangement the assignment of millwrights for employment by the Respondent Company at its Natrium, West Virginia , joo was left to the discretion of the business agent of Local 807. He has also found above that for the most part of the time involved herein W. A . Hayes was the business agent of Local 807. The record shows that at all times material herein Local 807 operated under a set of bylaws which sets forth the working rules of Local 807 . An examination of the working- rules bylaws which were identified by Business Agent W. A. Hayes at the hearing herein, offered in evidence by the General Counsel and admitted as General Counsel's Exhibit No. 4, over the objections of counsel for the Respondents , shows the following pertinent excerpts therefrom as regards millwrights: ARTICLE ELEVEN Millwrights Section 1 . The Business Agent shall have the authority to place key millwrights as he sees fit. Section 2 . Proportion of millwright apprentices shall be one apprentice to four mill- wrights. Section 3 . Millwright foremen shall receive 25 cents per hour over regular scale of wages for millwright. Section 4 . The scale of wages for millwright apprentices shall be as stated in Article 1. Section 4. Section 5 . If three or more millwrights are employed they shall have a foreman over them. No foreman shall have more than fifteen men under his supervision. Section 6. A millwright shall not be allowed to use anyone as a helper on any job unless they be millwrights or millwright apprentices. Section 7. Any millwright reporting to a job to work and not put to work by the con- tractor or employer , said contractor or employer must give two hours reporting time. Section 8. A millwright foreman shall not be allowed to use his tools on any job except to check work. When he has four or more men under him. Section 9. Millwrights shall perform the moving, placing , setting, arrangement and assembly of all machinery and equipment. Article Twelve of the bylaws of Local 807 contains the following material and pertinent sections to the issues involved herein: Section 1 . Any member ofLocalUniod 807 found guilty of discrimination or violating the trade rules of this jurisdiction shall be fined not less than $ 10.00 nor more than $ 50.00. Section 2. No member of this Local 807 shall work with non-union carpenter or mill- wright. Upon the findings made above and upon the entire record considered as a whole, the undersigned now finds that the bylaws of Local 807 were part and parcel of the agreement, understanding, or arrangement between the Respondents herein; that the working rules and regulations thereof as regards millwrights was in full force and effect at all times material herein, that the business agent of Respondent Local 807 applied said working rules and regu- lations to all persons seeking employment as millwrights for the Respondent Company at its Natrium, West Virginia , job; and that the application , use, and enforcement of said working rules and bylaws were used and applied with the full knowledge , cooperation , and approval of the Respondent Company. Having found as above, the question is posed as to whether or not the record substantiates the allegation in the complaint as regards the alleged discrimination against Charles Alder- man, John Rexroad , and Dallas Rae by the Respondent Company because they fa.' id to obtain clearance from Respondent Local 807 because they were not members of Local 807 and be- cause they were members of I.A . M., and in order to discourage membership in the I.A.M. In the considered opinion of the undersigned the answer to the General Counsel's contention as regards Rae and Rexroad is, as in all such cases , the record itself. The undersigned is convinced that the record when considered as a whole does not substantiate the General Counsel's contention in this regard . His reasoning is predicated upon the following factors: (1) At the time these employees applied for a job as millwrights there were none available; this fact is shown in the record not only by the credible testimony of Carpenter Foreman SEABRIGHT CONSTRUCTION COMPANY 23 Crane, but by the General Counsel's own documentary evidence , the list of millwrights employed by the Company from January 1, 1952, to August 1, 1952; (2) there is no sub- stantial evidence in the record that the Respondent Company had knowledge that they were members of either Local 907 or any other local of the I .A.M. at the time they made applica- tion for jobs to Carpenter Foreman Crane ; (3) the record clearly shows by a preponderance of the reliable , probative , and substantial evidence , when considered in the light of the entire record, that the hiring and tenure of millwrights was sporadic , and dependent upon the shipment and arrival of machinery at the Natrium project, which made it impossible to promise jobs as such in the future to any applicant for employment ; (4) there is no sub- stantial evidence in the record that either Alderman ,9 Rae, or Rexroad gave Carpenter Foreman Crane clear and essential information as to where they could be reached in the event there were openings for millwrights ; (5) the record clearly shows by the uncontra- dicted, undenied , and credible testimony of Edson Buehler , chief construction engineer for Columbia Chemical Corporation , that the machinery that necessitated the hiring of millwrights Robinson and Dye on March 26, 1952, did not arrive at the Natrium project until after Alderman , Rae, and Rexroad had their interview with Crane ; and (6) that notice of its arrival and the necessity for the hiring of two additional millwrights did not come to Crane's knowledge until after the interview . In the face of the foregoing the undersigned is convinced and finds that the General Counsel has failed to maintain the burden of proof as regards the allegation in the complaint that the Respondent Company discriminated as regards the hire and tenure of employment of Dallas Rae and John Rexroad; consequently he will recommend hereinafter that the allegations in the complaint as to them be dismissed in their entirety , insofar as the Respondent Company is concerned . The case of Alderman stands on different grounds and will be discussed hereinafter. There yet remains for disposal the allegation vi the complaint that Respondent Local 807 attempted to cause and did cause and is now causing the Respondent Company to dis- criminate against Alderman , Rae, and Rexroad. The facts in this regard have been set forth above . As the undersigned sees it the record shows that of these three employees only Charles Alderman made any real effort to secure employment with the Respondent Company through Respondent Local 807's business agent, W. A. Hayes. To begin with , the undersigned is convinced , after having carefully reviewed the entire record in the case, that the General Counsel has failed to maintain the burden of proof as to John Rexroad and Dallas Rae. As he sees it all that has been proven as regards these two alleged discriminatees is that they were members of the I.A.M. at the time they met with Carpenter Foreman Crane. There is not a scintilla of evidence in the record that Rexroad ever met Busuiess Agent Hayes , either personally or otherwise , or called at Respondent Local 807's offices , or any other manner , personally or otherwise , made application for a job as a millwright at the Natrium project. The undersigned has not overlooked the fact that Rexroad sat in the car while Alderman talked to Hayes at his home in the early part of March 1952 , nor Alderman 's testimony that in his conversation with Hayes he told him that he was speaking for both of "Lis." Even so , such testimony as this has no probative value whatsoever insofar as the issues herein are concerned for the simple reason that there is no substantial evidence in the record that Alderman told Hayes then or at any time thereafter that Rexroad was a member of the I.A.M. or any other labor organization for that matter . Though the record contains some slight suspicion that Hayes might infer from his conversation with Alderman that Rexroad was a member of the I.A.M., suspicion, no matter of what degree , is not evidence , and findings of fact can neither be inferred nor found thereon . Consequently , the undersigned will recommend that the complaint , insofar as it alleges that Respondent Local 807 caused the Respondent Company to discriminate against John Rexroad in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, be dis- missed in its entirety. Now as to Rae. 10 The case as to him parallels that of Rexroad which has been disposed of above. Here , too, the General Counsel has failed to maintain the burden of proof as re- 9The undersigned has reference to the March 24, 1952, incident . See hereinafter as regards Alderman. iOTlie undersigned recognizes the fact that there exists a conflict in the testimony of Rae, Alderman, and Rexroad as to just what Alderniansaid to Crane concerning their union affilia- tion on March 24, 1953. He has considered all of their testimony in this regard and he is con- vinced that the testimony of Alderman and Rexroad is a more accurate account of what 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gards his allegation in the complaint that Respondent Local 807 caused or attempted to cause the Respondent Company to discriminate against Rae in violation of Section 8 (a) (3) of the Act. The record is barren of substantial evidence that Dallas Rae ever at any time attempted to secure employment with the Respondent Company through the facilities of the Respondent Local 807. Under such circumstances the undersigned will recommend hereinafter that the complaint, insofar as it alleges that Respondent Local 807 caused the Respondent Company to discriminate against Dallas Rae in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, be likewise dismissed in its entirety. As indicated above the case as to Alderman stands on entirely different ground from that of Rae and Rex road. Though the undersigned is convinced that if the record contained nothing more than the testimony concerning the events that led up to the March 24, 1952, incident, then he would have been compelled to recommend dismissal as to Alderman insofar as the Respondent Company is concerned on precisely the same grounds that he dismissed as to Rae and Rexroad. But such is not the case as to Alderman. On or about June 20, 1952, Alderman filed a written application for employment with the Respondent Company, in which he set forth his name, address, and general qualifications as a millwright. The undisputed facts in the record show that on June 27, 1952, the Respondent Company hired Justus Suter as a millwright under the circumstances described above, and on July 22, 1952, hired one Roy Doty as a millwright. Hence, at the time Suter and Doty were hired the Respondent Company had in its possession formal notice that Alderman desired a job as a millwright on the Natrium job. The record also shows by a preponderance of the reliable, substantial, and probative evidence, much of it uncontradicted and undenied, that Respondent Local 807, through its business agent, Hayes, was not only well aware of Alderman's activities on behalf of the I.A.M. but was also on notice that he had made application for a job as a millwright on the Natrium job through its own facilities. Though much of the testimony surrounding the hire of Suter and Doty has gone before, nevertheless the undersigned sees no harm in reiterating it here insofar as Alderman's case is concerned. When Suter made application to Hayes for a job on June 21. 1952, n he was asked by Hayes if he belonged to the I.A.M. He denied that he did. Hayes then asked him to sign an "affidavit" to that effect, which he did. At the same time Hayes asked him if he knew Kenneth 0. Kemp and Roy Doty. u He told him that he did not. Hayes then told Suter that these two men had "raised a lot of trouble about the 'machinists' and that they were going to 'get into something they couldn't handle."' Of particular importance insofar as the issues herein are concerned is the fact that Hayes told Suter in the course of their conversation that "all millwrights had to go through the Paden City Local and they was making all millwrights sign an affidavit that they did not belong to the Machinists before they could go to work." [Emphasis supplied.] The record clearly shows that by the phrase "Paden City Local" H2yes had reference to Respondent Local 807. Suter, as indicated above, signed the "affidavit" in which he denied he was a member of the I.A.M. and went to work for the Respondent Company on June 27, 1952. Also of particular importance is the fact that there is not a scintilla of evidence in the record that Suter ever personally made an application for employment with the Respondent Company. Under such circumstances the undersigned is convinced and finds that Justus Suter was hired by the Respondent Company as a millwright on June 27, 1952, pursuant to the verbal understanding, agreement, or arrangement between the Respondents herein and in accordance with the working rules of Respondent Local 807 which as found above were part and parcel of said understanding, agreement, or arrangement. That Respondent Local 807 had hill knowledge of Alderman's activities on behalf of the I.A.M. is evidenced by Alderman's uncontradicted and undenied testimony that sometime around the middle of April 1952 he, accompanied by Rexroad, went to see Business Agent transpired and was said at the time, particularly when.considered in the light of Crane's testimony concerning the incident. Consequently, the undersigned is convinced that his resolu- tion heretofore made above as regards Alderman's account of the incident is correct, and that the testimony of Rae in this regard is erroneous n The undersigned finds that Suter applied to Hayes on June 21, 1952, since this is the date shown on the "affidavit" he signed when he applied to Hayes for a job 12 The record is not too clear as to Doty's hire and tenure of employment, except that according to Suter, Hayes told him that he (Hayes) had to hire Doty because he "had him over a barrel." Suter's testimony in this regard stands uncontradicted and undenied in the record. It is credited by the undersigned. SEABRIGHT CONSTRUCTION COMPANY 25 Hayes at the Natrium job about securing employment . 13 In the course of their conversa- tion Hayes offered to bet Alderman $ 5 that he would never secure employment "anywhere in the valley without signing an affidavit," meaning of course, as the record clearly shows, the so-called "affidavit" that the signer did not belong to either the I.A.M . or any other labor organization that was not approved by Respondent Local 807. As far as the record herein is concerned, Alderman never signed the "affidavit." Conclusions as to Alderman Upon all of the foregoing the undersigned is convinced and finds that the Respondent Company was on notice as of June 20, 1952, that Charles Alderman sought employment as a millwright on its Natrium , West Virginia , job. He also finds that jobs as millwright were available on the Natrium job after Alderman had made formal application for a job. It is also found that Alderman made formal application for employment as a millwright on the Natrium job to Business Agent W. A. Hayes in the early part of March 1952, and thereafter on or about April 10, 1952.14 He further finds that on or about March 26, 1952, and thereafter on various dates jobs for millwrights were available with the Respondent Company at its Natrium, West Virginia , job. The undersigned has found above that at all times material herein there existed an illegal arrangement , agreement, or understanding to the effect that the Respondent Company would as a condition of employment employ only millwrights who were either cleared through , or were members of, Respondent Local 807. Having found as above , the undersigned is convinced that Charles Alderman was denied employment by the Respondent Company as a millwright on or about June 27 , 1952, when it placed on its payroll Justus Suter who as found above was referred to said job by Respondent Local 807 on that date , in total disregard of Alderman 's formal application for such a job which was then before the Respondent Company for consideration . The undersigned has set the date of the Respondent Company 's liability as regards the hire and tenure of employment of Charles Alderman as of June 26,1952, for the following reasons: (1) The record clearly shows that the hire and tenure of employment of millwrights was sporadic and that from January 1, 1952, t6 July 22, 1952, only 10 were employed by the Respondent Company , for the most part on different dates; (2) there is no substantial evidence in the record that the Respondent Company had knowledge of Alderman's desire to be employed as a millwright until he made formal application to it on June 20 , 1952. Under these circumstances the undersigned is con- vinced that since a respondent company is not guilty of an unfair labor practice within the meaning of Section 8 (a) (3) of the Act unless it has been shown that at the time it allegedly discriminated against an employee it had knowledge of his union or concerted activities at the time the alleged discrimination occurred . When this accepted rule is considered in the light of the sporadic nature of a millwright 's employment , then the undersigned is convinced that it is reasonable under all the circumstances to date the Respondent Company 's liability for its illegal conduct from the date it had actual knowledge of Alderman 's desire for employment. True there existed at all times material herein an illegal agreement of millwrights as such compels the undersigned to adopt the above reasoning. As the undersigned sees it, the vice of the conduct of the Respondents herein stems from the provisions in the Respondent Union's bylaws and/or working rules which the undersigned has found above to have been part and parcel of their illegal agreement or understanding which has also been found above to have been in full force and effect at all times material herein. From these rules, which as the undersigned sees it are to a great extent influenced by the age-old controversy between the "Carpenters " and the "Machinists " as to who shall control the millwrights , stems the illegal conduct of the Respondent as regards Alderman . Though the undersigned is not unmindful of the Respondent Company's position and inherent problems as regards the hire and tenure of skilled employees in the carrying on of its business in the construction industry, and the further fact that its working arrangement with Respondent Local 807 and other craft unions that make up the Building and Trades Council has been, over the years , amicable, practical, and of mutual benefit to all concerned, nevertheless, such commendable considerations are beside the point for the simple reason that the Act as i3Rexroad testified that though he went to Natrium with Alderman he neither saw Hayes at the time nor was present when Alderman talked with Hayes i4Alderman testified that he went to see Hayes about 2 weeks after March 24, 1952 The undersigned finds the date to have been about April 10, 1952. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interpreted by the Board and the courts says such arrangements are illegal where as here they are discriminatorily applied. That being so the undersigned finds below that the General Counsel has maintained the burden of proof necessary to make the findings below as regards the Respondents. By the conduct described above the undersigned finds that the Respondent Company, by its officers, agents, representatives, and employees, pursuant to an agreement or arrangement with Respondent Local 807, did, on or about June 27, 1952, and at all times thereafter, refuse to employ Charles Alderman because of his failure to obtain clearance from Respondent Local 807, because he was not a member of Respondent Local 807, and in order to encourage membership in Respondent Local 807, and because he was a member of the I.A.M., and in order to discourage membership in the I.A.M., and that by such conduct the Respondent Company did discriminate in regard to the hire and tenure of employment of Charles Alderman in order to encourage membership in Respondent Local 807, and to discourage membership in the I.A.M., and that by such conduct engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. By the conduct described above, Respondent Local 807, by its officers, agents, representa- tives, particularly its Business Agent W. A. Hayes, did on or about March 25, 1952, is and at all times thereafter attempt to cause and did cause Respondent Company to refuse to hire Charles W. Alderman in violation of Section 8 (a) (3) of the Act because of his membership in and activities on behalf of I.A.M., and by such conduct violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. The undersigned dates Respondent Local 807's liability from March 25, 1952, because it was on that date that Business Agent Hayes was notified by Carpenter Foreman Crane that millwrights were needed for March 26, 1952, on the Natrium job. There is nothing illegal about an arrangement between employees and unions to use the latter's facilities to hire employees, but it becomes illegal where as here the union uses its facilities in a discriminatory manner for the purpose of encouraging membership in it and to discourage membership in other labor organizations. Since Respondent Local 807 refused to clear Alderman at any time material herein because of his I.A.M. activities, it is reasonable to assume that it was because of his membersfiip in and activities on behalf of the I.A.M. that it caused the Respond- ent Company to refuse to hire him in violation of Section 8 (a) (3) of the Act. The Alleged Discriminatory Refusal to Hire Kenneth 0. Kemp Kenneth O. Kemp was employed by the Respondent Company at Shadyside, Ohio, as a mill- wright before the events with which we are concerned herein occurred. He worked on that job until it was completed in the latter part of December 1952. While he was employed at Shady- side he joined Local 907 of the I.A.M. and thereafter was active in its affairs. He was also at all times material herein, a member of the Respondent Local 807. On or about April 8, 1952, Kemp called at the offices of the Respondent Company in Wheeling, West Virginia, and asked for employment as a millwright at the Natrium project. At that time he had a conversation with President William S. Downing of the Respondent Company. His testimony in this regard is, in the considered opinion of the undersigned, of considerable importance not only because it is material as regards the allegation in the complaint as to kemp, but also because it goes right to the heart of the General Counsel's contention as regards the illegal hiring practices of the Respondents. Moreover, it stands uncontradicted and undenied in the record, since Downing himself was not queried in this regard when he testified at the hearing herein. For these reasons the undersigned feels that pertinent excerpts from the testimony of Kemp should be inserted herein. Consequently, it follows below: Q. What was said, Mr. Kemp? A. Well, I asked Mr. Downing concerning work, if there was any work available at the Pittsburgh, Coke & Chemical job, and he stated that he didn't know, that he would find out and see. So he told me to get in contact with the business agent the following day, which I believe was on the 9th; and he was supposed to call Joe Lyle, and then Joe was to evidently call the business agent if he had any work. He didn't know what was going on. TRIAL EXAMINER SHAW: Business agent for whom? isSince the record shows that there was no need to hire millwrights through Respondent Local 807 until the evening of March 25, 1952, the undersigned uses this date insofar as the liability of Respondent Local 807 is concerned SEABRIGHT CONTRUCTION COMPANY 27 THE WITNESS: Local 807, Carpenters. Q. (By Mr. Thackery) Do you know who that business agent was? A. Joe Hayes. Q. Is that W. O. Hayes' A. Yes . So the following day I contacted Mr. Hayes , and he told me that he didn't know anything, or nobody had nptified him. That was early in the evening, and he took my name and address and wrote it down so if they'd call later that evening , he could get in touch with me. Q. Getting back to this conversation with Mr. Downing, did Mr. Downing say anything at your conversation? A. Well, the only thing that I can recall now is that he made the statement that he thought we should organize a Millwright union in the vicinity of Wheeling rather than a Machinists' organization. Q. Form a Millwrights' local; is that what you mean? A. Yes, a Millwrights' local for the Wheeling vicinity. Q. Instead of affiliating with the I.A.M.? A. He thought that would be a good idea to have a Millwrights' organization in the City of Wheeling. Pursuant to Downing 's suggestion Kemp contacted Business Agent Hayes at his home on the next day, April 9, 1952, and asked him for a job as a millwright. Hayes told him that he had received no requests for millwrights from either Joe Lyle, the Respondent Company's super- intendent, or Glenn Crane, the carpenter foreman, but thought that they would soon need a millwright, and that if such was the case he would be the "next man out," and took Kemp's name and address for future reference. On the next day, April 10, 1952, Kemp called at the job site to see Superintendent Lyle but was unable to do so . He then contacted O. S. Robinson, at that time foreman of the millwrights, who told him that the Respondent Company would soon hire some millwrights and suggested that he see Carpenter Foreman Glenn Crane. He saw Crane and asked him for a job as a millwright. Crane told him that the Respondent Union's business agent, W. A. ("Joe") Hayes, was sending all millwrights out to the job and that he was not hiring any at the job site . Shortly thereafter Kemp again contacted Business Agent Hayes and asked him about the millwright situation at Natrium . In the course of their conversation Hayes told Kemp that one James Cokeley had been hired as a millwright that morning, April 22, 1952 . Kemp protested to Hayes and reminded him that he had promised to send him out on the next available job. Hayes replied that "Well, Cokeley didn't belong to the International Association of Machinists ." Kemp advised him that Cokeley was in fact a mem- ber of the•I.A.M., and that if he told Hayes he was not, he lied. Hayes ignored Kemp's accusa- tion and said , "At least he signed a statement that he didn 't belong." 16 Kemp left in disgust and thereafter charges against the Respondents herein were filed on his behalf by the I.A.M. That Kemp's activities on behalf of the I.A.M. were well known to Business Agent Hayes is also well established in the record by the uncontradicted and undenied testimony of Justus Suter. According to Suter, Hayes asked him if he knew Kemp and Roy Doty. He told him he did. Hayes then told Suter that "they was raising a lot of trouble about the Machinists and they was going to get into something they couldn't handle." Suter's testimony in this regard is fully credited by the undersigned. The Respondent Company contends that Carpenter Foreman Glenn Crane personally hired James Cokeley as millwright foreman, and had made arrangements to do so before he was actually put on the payroll. Crane's testimony in this regard was to effect that he had decided to demote Orland Robinson from foreman of the millwrights to millwright for managerial reasons and that when he told Robinson of his plans to demote him, Robinson quit. At the same time millwrights Ray J. Robinson and Richard Dye also quit in protest of Crane's demotion of Orland Robinson. This left three millwright jobs open, including the job of foreman, and it was under these circumstances that Crane hired Cokeley, and the latter shortly after he assumed the duties of millwright foreman put Mankins and Eddy on the job as millwrights. As to F rank Trost, a millwright hired on April 21, 1952, Crane could not recall the circumstances under which he was hired. While it may well be true that Crane had talked to Cokeley about his plans to demote Robinson from foreman to millwright , nevertheless the uncontradicted and undenied testimony in the record as regards the Respondent Company's hiring policy when considered in the light 16See General Counsel's Exhibit No G. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Hayes' statement to Kemp that Cokeley had been sent out to the job after he had signed an affidavit to the effect that he was nota member of the LA.M., belies the Respondent Company's contention that Cokeley's hiring was merely the proper exercise of a managerial prerogative. This conclusion is buttressed by the fact that Kemp's testimony as regards Crane's statement to him at the time he applied for a job as a millwright that "the business agent was sending all the men out and that he wasn't hiring on the job," stands uncontradicted and undenied in the record, in face of the fact that Crane appeared and testified before the undersigned in this proceeding. While it is true that under ordinary circumstances it is the privilege and prerogative of management to choose and select its own supervisory employees , nevertheless the record herein does not substantiate the contention of the Respondent Company that it independently exercised its prerogative in the case of James Cokeley. The undersigned bases his conclusion in this regard upon the record as a whole, particularly Hayes' statement to Kemp that Cokeley had been hired on the morning Kemp talked to him, April 22, 1952, and that Cokeley had signed an "affidavit" to the effect that he was not a member of the I.A.M. In reaching this conclusion the undersigned of necessity was compelled to take into consideration Downing's statement to Kemp concerning the Respondent Company's hiring policy, and finally and most persuasive were the bylaws and/or working rules of Respondent Local 807 which clearly show in sections 3 and 8 that Respondent Local 807 at least retains control over the working condi- tions of millwright foreman which the undersigned is convinced negates the contention of the Respondent Company that Cokeley, or others similarly situated, occupies "supervisory" status within the meaning of the Act, insofar as the issues herein are concerned. Again, the undersigned cannot accept the contention of the Respondent Company that mill- wrights Hankins and Eddy were hired without clearance from Respondent Local 807, for the simple reason that the overwhelming weight of the evidence as regards the hiring policy of the Respondent Company and its agreement or understanding with Respondent Local 807 negates such an assumption. Moreover, neither of the Respondents chose to call as witnesses either Cokeley. Mankins, or Eddy to rebut the assumption reached above or to explain the circum- stances under which they were placed on the Respondent Company's payroll. 17 Regardless of the Respondent Company's contention as regards the circumstances sur- rounding the hire of Cokeley, Mankins , qnd Eddy, there yet remains unexplained in the record the circumstances under which Frank Trost was hired as a millwright on April 21, 1952. According to the list of millwrights employed by the Respondent Company between January 1, 1952, and August 1, 1952, he was hired the day before Cokeley and about a week before Mankins and Eddy. In view of all that has been said and found above, particularly as regards the hiring policy of the Respondent Company and the agreement or understanding between the Respondents , the undersigned concludes and finds that Trost was hired pursuant to that agreement and was assigned to the Natrium job as a millwright by the business agent of Respondent Local 807. Conclusions as bQ Kenneth O, Kemp Upon all of the foregoing the undersigned is convinced and finds that Kenneth O. Kemp was denied employment by the Respondent Company as a millwright at the times such jobs were available because he was not "cleared" for employment with it by Respondent Local 807, who in turn refused to clear him for such employment because he chose to refrain from signing an "affidavit" or statement to the effect that he was not a member of the I.A.M., and because he chose to refrain from revoking his membership in the I.A.M., as a prerequisite to clearance by its business agent, in accordance with its bylaws and working rules , which were part and parcel of the agreement or understanding between the Respondents at all times material herein. The undersigned further finds that Respondent local 807 by its conduct towards Kenneth O. Kemp, did, on or about April 8, 1952, and at all times thereafter , attempt to cause and did cause Respondent Company to refuse to hire Kenneth O. Kemp in violation of Section 8 (a) (3) of the Act. It is further found that by the conduct described and found above Respondent Local 17 The undersigned realizes of course that it was the Respondents alone who were on trial and that it was up to the General Counsel to prove his case by a preponderance of the reliable probative , and substantial evidence considered in the light of the whole record. But-where as here so much testimony stands uncontradicted and undenied it is not only reasonable to infer that certain things happened but under all the circumstances one is compelled, in the face of such facts as there are , to reach this as well as other conclusions SEABRIGHT CONSTRUCTION COMPANY 29 807 attempted to cause and did cause and is now causing and attempting to cause Respondent Company to discriminate against employees in regard to their hire and tenure of employment in violation of Section 8 (a) (3) of the Act, and by all of said acts and by each of them Respond- ent Local 807 has engaged in and is now engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act; and it is further found that by all of the conduct described above Respondent Local 807 did restrain and coerce and is now restraining and coercing the employees of Respondent Company in the exercise of the rights guaranteed them in Section 7 of the Act and by such conduct Respondent Local 807 has engaged in and is now engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. The undersigned also finds that the Respondent Company by its officers and agents prusuant to the agreement, understanding, or arrangement with Respondent Local 807, which has been fully described above, did on or about April 8, 1952, and at all times thereafter, refuse to employ Kenneth O. Kemp as a millwright because he failed to obtain clearance from Respondent Local 807 and in order to encourage membership in Respondent Local 807 and because he was a member of the I.A.M. and in order to discourage membership in the I.A.M., and that by said conduct violated Section 8 (a) (3) and (1) of the Act. As the undersigned sees it the gravamen of the Respondent's conduct lies in their agreement or understanding concerning the hiring of millwrights. The undersigned understands why the Respondent Company entered into such an agreement. The reason is obvious to any person familiar with the practical and everyday problems that confront those engaged in the construc- tion industry. By the same token the undersigned understands the day-to-day problems of the representatives of labor organizations composed of skilled craftsmen without whom there can be little if any activity in the construction industry. Here again it is obvious that such repre- sentatives will and as a practical matter must make every possible effort not only to secure jobs for members of their organizations butseeto it that no outsider secures a job that custom over the years has allotted to their particular organizations. Even so, such considerations are beside the point since the Act provides that only under certain conditions may employers and labor organizations enter into agreements providing that only members of labor organizations may be hired as employees. Here there exists no such valid agreement. Hence, Kemp arid others similarly situated were not required to bemembers of Respondent Local 807 as a condi- tion of employment with the Respondent Company. Here then lies the vice of the whole affair. The Congress has said that the conduct of the Respondents herein, collectively and singularly, is violative of the Act. Consequently, the undersigned has found as above. In summation, the undersigned has found above that by the totality of the conduct addressed to and as applied to Kenneth O. Kemp, the Respondent Employer violated Section 8 (a) (1) and (3) of the Act, and the Respondent Union, Section 8 (b) (1) (A) and 8 (b) (2) of the Act. Independent Violations of the Act by Local 807 In contemplation of what has been found above, the undersigned is convinced that if Kemp, and also Alderman, had been cleared by the business agent of Respondent Local 807 for employ- ment as millwrights they would have been hired forthwith as such by the Respondent Company. Business Agent Hayes' refusal to clear them for employment was because they chose to re- frain from (1) signing the statement or "affidavit" to the effect that they were not members of the I.A.M., and (2) because they refused to resign from and revoke their membership in the I.A.M. Wilde it is truethat a labor organization may "prescribe its own rules with respect to the acquisition or retention of membership therein," 18 it cannot under the Act use such rules and regulations as a means of discriminating against employees in general in the exercise of the rights guaranteed them in Section 7 of the Act. It is fundamental that neither labor organizations nor any other organization, no matter for what purpose it exists, may impose rules and regulations upon their membership that are diametrically opposed to public policy as expressed either by statutory legislation or by virtue of constitutional rights and privileges. So is it here. Kemp and Alderman chose to exercise the rights guaranteed them in Section 7 of the act by choosing to refrain from or conform to the bylaws and/or working rules of Respondent Local 807, which as found above were part and parcel of an illegal agreement or understanding between the Respondents. Such conduct on the part of Respondent Local 807 is so clearly interference with, restraint, and coercion of the rights of employees as set forth and guaranteed in Section 7 of the Act that little or no comment in this regard is either necessary or desirable herein. Suffice it to say that the undersigned finds that by such conduct Respondent Local 807 violated Section (b) (1) (A) of the Act. 18 Excerpt from the proviso to Section 8 (b) (1) of the Act 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other Alleged Independent Violations of Section 8 (a) (1) of the Act The complaint alleges that in addition to the unfair labor practices found above the Respond- ent Company by and through its agents , Glenn Crane, William Downing, and Joseph Lyle, did on or about March 1, 1952, and at various times thereafter up to and including the present time, permit, authorize, instigate, and acquiesce in the following acts, all of which the General Counsel contends are independently violative of Section 8 (a) (1) of the Act: (a) Statements and expressions tending to discourage concerted activities on the part of Re- spondent Company's employees for the purposes of collective bargaining. (b) Statements and expressions tending to discourage membership and activities among Re- spondent Company's employees in the I.A.M. The undersigned has set forth above the gist of Kemp's interview with President William Downing of the Respondent Company. Kemp's testimony in this regard stands uncontradicted and undenied in the record, and as indicated and found above is fully credited by the under- signed. Without burdening this report with needless repetition, the undersigned now finds that Downing's remarks to Kemp, which were to the effect that Kemp should see Business Agent Hayes about a job at the Natrium project and his further suggestion that Kemp and other mill- wrights should organize a millwright's union rather than a "machinist organization," were, in the considered opinion of the undersigned, violative of the Act in that they clearly not only suggested that if Kempdesireda job he would have to get it through Respondent Local 807, and, also as a prerequisite, thereto abandon his right to engage in concerted activities on behalf of the I.A.M. Downing knew or should have known at the time that there was no legal agree- ment between the Respondents requiring membership in Respondent Lcaol 807, hence his re- marks were clearly interference with Kemp's rights, as set forth in Section 7 of the-Act. Such conduct is independently violative of Section 8 (a)(1) of the Act. What such remarks amount to is this: they plant in the minds of employees that their efforts at self-organization are not only fruitless but that reprisals are in the offing if they persist in their efforts, and benefits in store for them if they refrain from exercising their rights under the Act. That is to say, if you want a job you will have to get it through a labor organization of the Employer's choice and if you persist in your efforts toselectanorganization of your own choice you will be denied a job. Crane's statement to Kemp that he would haveto see Business Agent Hayes for a job was in the considered opinion of the undersigned, when considered in the light of all that has been found above, likewise violative of Section 8(a)(1) of the Act for precisely the same reasons as found immediately above as regards the statements of President Downing. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the activities of the Respondent Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents engaged in unfair labor practices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The record herein shows that Respondent Local 807 applied its working rules as set forth in its bylaws to all carpentry and millwright jobs within the Wheeling, West Virginia, area, some- times referred to as the "valley," thus covering interstate employers as well as local con- tractors engaged in construction work in the geographical area under its jurisdiction . Since it has been found that the illegal (under the Act) agreement , understanding , or arrangement under which the Respondents operate embodies Respondent Local 807's bylaws and/or working rules, there is a danger that the Respondents may engage in future violations of the Act with other labor organizations and employers. As indicated many times above, the hire and tenure of millwrights in the construction indus - try is "sporadic" to say the least, and by the time the processes of the Board and the protec- tion accorded litigants before it under its rules and regulations have been exhausted, the project which has been the indirect cause or the subject of the litigation has long since been completed and the parties have moved on to other or perhaps are engaged in an entirely different kind of construction work than that with which we are concerned in the instant case, where, for ex- ample, there would be no need for millwrights at all throughout the entire period of construc- tion. Therefore the only practical effect of the nominal and/or customarily recommended cease-and-desist order, which is limited to the parties involved in the litigation, is to make whole those found to have been discriminated against for losses incurred as a result of the dis- SEABRIGHT CONSTRUCTION COMPANY 31 crimination and to post notices. It is the latter that causes the difficulty . To order a party to post a notice at a job site that has long since been abandoned would be not only an idle and futile gesture but ridiculous on its face insofar as "effectuating the policies of the Act" is con- cerned. Under such circumstances the undersigned is convinced that if the order is to fit the vice of the Respondents ' conduct as found and described above then such an order must of necessity be a broad one. Consequently it will be recommended that a broad cease-and -desist order be issued here. 19 Accordingly , the undersigned recommends that Respondent Seabright Construction Company refrain from entering into , performing, or maintaining any hiring ar- rangement and/or agreement with Respondent Local 807 or with any other labor organization, except in accordance with the provisions of the Act . It will also be recommended that Respondent Local 807 refrain from such employment arrangement , agreement, and/or understanding with Respondent Seabright Construction Company or with any other employer engaged in commerce within the meaning of the Act, except in conformity with the provisions of the Act governing such agreements. As indicated above, the problem of devising a remedy for the discriminatory refusal to em- ploy Kenneth O. Kemp and Charles W . Alderman as millwrights presents considerable diffi- culty no only in view of the nature of the Respondent Company's business , but also due to the sporadic tenures of millwrights as such. The record shows that they are needed only when ma- chinery and the like is to be installed or moved on the job. Consequently the Respondent Com- pany neither needs afullcrewofsuchemployees at all times nor would it be fair to expect him to keep on his payroll a complement of such craftmen for employment in the future. Since the record indicates that the Natrium job was finished sometime before the hearing herein was had, under such circumstances it would be grossly unfair to make a forthright recommenda- tion for the Respondent Employer to offer Kemp and Alderman jobs as millwrights forthwith. Therefore it will be recommended that Respondent Company , Seabright Construction Com- pany , offer Kenneth O. Kemp and Charles W . Alderman employment as millwrights on one of its present jobs if it is so engaged at the time this Intermediate Report is officially received by it or as soon thereafter as such jobs are available within the geographical jurisdiction serv- iced by Respondent Local 807, and that Respondent Local 807 notify the Respondent Company in writing that it will not object to , but on the contrary now requests , the immediate hiring of Kenneth O. Kemp and Charles W. Alderman in accordance with the recommended offer by the Respondent Employer set forth immediately above. 20 Since it has been found that the Respondent Company and Respondent Local 807 are both re- sponsible for the discrimination suffered by Kenneth 0. Kemp and Charles W . Alderman it willbe recommended that they jointly and severally make Kenneth O . Kemp and Charles W . Alderman whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned in the em- ploy of the Respondent Employer from on or about April 22 , 1952 , in the case of Kenneth O. Kemp. As to Charles W. Alderman , the record as indicated above calls for a different recommendation insofar as "back pay" is concerned . Consequently the undersigned will recommend thatRespond- ent Local 807 alone make Charles W. Alderman whole for any loss of earnings he may have suf- fered by reason of its discrimination against him , through its Business Agent W . A. Hayes , by pay- ment to him of a sum of money equal to that which he would have earned in the employ of the Re- spondent Employer from March 26 , 1952 , to June 27 , 1952 , the date following after June 20 , 1952 21 when he made formal and reasonable application for employment as a millwright to the Re- spondent Employer , when a job as millwright with Respondent Employer was available. It is further recommended that Respondent Local 807 and the Respondent Company jointly and sev- erally make Charles W . Alderman whole for any loss of earnings he may have suffered by rea- son of the discrimination against him , by payment to him of a sum of money equal to that which he would have earned in the employ of the Respondent Employer from June 27, 1952, to the date the Natrium job was completed or the date the Respondent Company had no further use for millwrights on said project , whichever the records of said Respondent Company shows. Since such details are really a matter of compliance to this recommended order, no attempt will be made herein to prescribe a method for computation of the time millwrights were actually needed by the Respondent Company. The undersigned further recommends that the records of the Respondent Company be made available to thedesignated agents and/or representatives of the Board. 22 19N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U . S. 333 , 348; N. L. R. B. v. Express Publishing Co., 312 U . S. 426. 20See The Chase National Bank of the City of New York , San Juan , Puerto Rico, Branch, 65 NLRB 827. 21The date the undersigned has found above that Charles W. Alderman made a valid and reasonable request for employment with the Respondent Company. 22Crossett Lumber Company , 8 NLRB 440 ; F. W. Woolworth Company , 90 NLRB 289. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the record in the case, the under- signed makes the following: CONCLUSIONS OF LAW 1. International Association of Machinists, AFL, and United Brotherhood of Carpenters and Joiners of America, Local 807, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Seabright Construction Company of Wheeling, West Virginia, is an employer within the meaning of Section 2 (2) of the Act. 3. By causing the Respondent Employer. Seabright Construction Company, to discriminate in regard to the hire and tenure of employment of Kenneth O. Kemp and Charles W. Alderman in violation of Section 8 (a) (3) of the Act, Respondent Union Local 807 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act; and by interfering with, restraining , and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent Union Local 807 has also engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (b) (1) (A) of thg Act. 4. By discriminating in regard to the hire and tenure of employment of Kenneth O. Kemp and Charles W. Alderman, thereby encouraging membership in a labor organization, the Respondent, Seabright Construction Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) 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.] MOORE DROP FORGING COMPANY and CARL PELCZARSKI, Petitioner and SPRINGFIELD DIE SINKERS LODGE #350 OF THE INTERNATIONAL DIE SINKERS CONFERENCE. Case No. 1-RD-159. March 24, 1954 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert E. Greene , hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' The Union contends that the petition should be dismissed on the ground that the decertification petition was inspired by Harold Dickey, the Employer's president. In support of this contention the Union relies upon Dickey's testimony that the Petitioner sought his advice with respect to the possibility of rejecting the Union as the bargaining representative of the Employer' s employees , that Dickey thereafter suggested to the Petitioner that, he contact a particular labor consultant whose name Dickey had heard in conversations with various State 1The Union contends that it was prejudiced by the hearing officer's refusal to admit evidence on the history of the bargaining pattern relating to the Union's wage agreement with the Employer and by his refusal to admit in evidence the Union's letter in answer to the Employer's letter of September 24, 1953, which advised that the Employer was thereby termi- nating the bargaining contract hereinafter discussed. We affirm the hearing officer's rulings on these matters for the reason that the evidence is irrelevant to the issues here involved. 108 NLRB No. 5.