Golden Valley Electric Association, Inc.

GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. 397 Cagle, Shelby McNeil, Ernest Clark, Charles Maynard, F. C. Clark, Theodore Stringer, Harvey Cox, Junior Stringer, Theron Cox, Willie Washington, R. C. Davis, Dwain Zimmerman, Wilbur Dye, Ned, Jr. Anderson, Charles Jones, Verbon Brooks, Curtis Lee Langston, Raymond Henderson, Alvin Smith, Lester James, Eddie Smith, W. H. Johnson, Jimmie Lee Taylor, J. C. Parker, Fred Bullard, William Raniey, Charles Ford, Robert Hastings, Kenneth W. Hunter, Ralph H Grantham , Claudia Keaton, Joel All our employees are free to become or remain or refrain from becoming or re- maining members in good standing of the above-named Union or any other labor organization, except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. SOUTHERN FRUIT DISTRIBUTORS, INC., 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. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. and HARRY F. ALEXAN- DER and WALTER WANDSCHNEIDER. Cases Nos. 19-CA-893 and 19-CA-893-1. July 26, 1954 Decision and Order On February 4, 1954, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Inter- mediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modifications : 1. We agree with the Trial Examiner that the Respondent's execu- tion of the contract with the Union granting preference in employ- ment to union members, and its practice thereunder of requiring clear- ance from the Union's discriminatorily operated hiring hall, were un- lawful. However, we do not adopt his recommendation that the entire contract be set aside. As there was no violation of Section 8 (a) (2) 109 NLRB No. 62. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged or found in this proceeding, we shall limit our order with- re- spect to the contract itself to requiring Respondent to cease giving effect to the unlawful provisions of that contract and to refrain from executing agreements in the future, containing such unlawful provisions.' 2. We also find, like the Trial Examiner, that the Respondent dis- criminatorily denied employment to complainants- Wandschneider and Alexander.' In this connection, we agree with the Trial Exam- iner that the discrimination against Wandschneider and Alexander dates, as alleged in the complaint, from April 9-7, and 28, 1953, respec- tively, when they were informed by Respondent concerning the need for clearance from the Union. However, we do not agree with the further finding of the Trial Examiner that job openings were then available for complainants and back pay should therefore begin on those dates.3 Manager Eidem credibly testified that he told complainants on April 27 and 28 that he had no immediate need for additional workers. Moreover, Re- spondent's staff was not in fact increased until May 16, 1953, when following Eidem's specific request to the Union for Alexander and Wandschneider, the Union referred other workers who were hired instead. Based on the foregoing, we find that vacancies for which .llexander and Wandschneider were eligible arose on May 16, 1953, and we shall order their back pay to begin on that date.4 As the record does not sufficiently reveal when complainants would have been laid off during 1953 or when they would have been recalled in 1954, absent Respondent's discrimination against them, for the pur- poses of computing back pay these dates will be ascertained at the, compliance levels 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 Respondent, Golden Valley Electric Asso- ciation, Inc., Fairbanks, Alaska, its officers, agents, successors, and assigns, shall: 1 Cf Charles E Daboll, Jr., 105 NLRB 311 2 In its brief, Respondent requested that the record be ieopened to admit a chart show- ing its personnel complement during and since 1953, as contrasted with 1952. The General Counsel objected to this request Respondent thereafter filed an additional request for permission to submit a memorandum in support of its motion to reopen, and attached to. this request a copy of its supporting memorandum . Respondent's requests are hereby de- nied because the evidence sought to be introduced , even if deemed admissible at this time, would not alter our determination herein 3 We find it unnecessary to decide whether complainants woi e employees "on leave" on April 27 and 28 , as concluded by the Trial Examiner and excepted to by Respondent whether complainants be considered employees "on leave" who were discriminatorily de- nied reinstatement , or applicants who were discriminatorily denied employment , their back pay under the circumstances here would begin only when the need for their services arose. 4 Seebrsght Construction Company, 108 NLRB 8. 5 Shedd-Brown, Mfg. Co, 103 NLRB 905 at 907, enfd. as mod 213 F 2d 163 (C. A. 7). GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. 399 1. Cease and desist from : (a) Performing or giving effect to those provisions of its agree- ment with Local 1533, International Brotherhood of Electrical Workers, AFL, which grant preference in employment to members of that Union. (b) Entering into or renewing any agreement with any labor or- ganization which contains provisions granting preference in employ- m,ent to union members, except to the extent permitted in Section 8 (a) (3) of the Act. (c) Encouitaging membership in Local 1533, International Brother- hood of Electrical Workers, AFL, or in any other labor organiza- tion, by conditioning the employment of properly qualified appli- cants for employment upon membership in, or referral by, said Local 1533, International Brotherhood of Electrical Workers, AFL, or any other labor organization, or by discriminating in any other man- ner in regard to the hire and tenure of employment of employees, or any term or condition of their employment, except as permitted in Section 8 (a) (3) of the Act. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, except as such rights may be affected by an agree- ment authorized under the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Walter Wandsclineider and Harry F. Alexander im- mediate arid full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority and other rights and privileges, in accordance with the recommendations set forth in the section of the Intermediate Report entitled "The Remedy." (b) Make whole Walter Wandschneider and Harry F. Alexander for any loss of earnings suffered by them, in the manner set forth in the` section of the Intermediate Report entitled "The Remedy," as modified by the foregoing decision herein. (c) Upon request snake available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay and the right of reinstatement under the terms of this Decision and Order. (d) Post at its office in Fairbanks, Alaska, copies of the notice at- tached hereto and marked "Appendix.",, Copies of such notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondent's authorized representative, be 6 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 " 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted by Respondent immediately upon receipt thereof and main- tained for sixty (60) consecutive days in conspicuous places, includ- ing all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the NineteeniIi Region, in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply therewith. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT perform or give effect to those provisions of our present agreement with Local 1533, International Brotherhood of Electrical Workers, AFL, which grant preference in employment to members of the Union. WE WILL NOT enter into, or renew, any agreement with Local 1533, Internationl Brotherhood of Electrical Workers, AFL, or any other labor organization, which grants preference in employ- ment to union members or discriminatorily requires that em- ployees obtain a clearance from that labor organization as a condi- tion of employment. WE WILL NOT require employees or applicants for employment to obtain clearance from or be members of Local 1533, International Brotherhood of Electrical Workers, AFL, or any other labor organization, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaran- teed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer Walter Wandschneider and Harry F. Alexander immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay each may have suffered by reason of our discrimination against them. All our employees are free to become, to remain, or to refrain from becoming, or remaining, members of the above-named Union or any other labor organization, except to the extent that this right may be GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. 401 affected by an agreement in conformity with Section 8 (a) (3) of the Act. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, herein called the Act, was heard at Fairbanks, Alaska, on October 26-27, 1953, pursuant to due notice to all parties. At the hearing all parties were, represented, were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings. The complaint dated September 15, 1953, issued by the General Counsel of the National Labor Relations Board and duly served on the Respondent was based on charges filed by Harry F. Alexander and Walter Wandschneider on September 1, 1953. The complaint alleged in substance that the Respondent (1) had discharged Wandschneider because he had not been approved or dispatched by Local 1533, International Brotherhood of Electrical Workers, AFL,' whose clearance was re- quired by the Company as a condition precedent to employment; (2) had discharged Alexander for the same reason; (3) had failed and refused to reinstate the above- named employees; and (4) had entered into an agreement with the Union whereby employees of the Respondent, who had been laid off,. would not be permitted to resume work, unless and until the employees received a clearance from the Union, and whereby the Respondent hired all its employees through the Union notwith- standing the Union's practice of dispatching only union members. In its duly filed answer, the Respondent denied the commission of any unfair labor practices, and alleged several matters as affirmative defenses. The allegations are as follows: (1) That the complaint fails to join an indispensable party defendant, the Union; (2) that the complainants were not employees of Respondent at any time during the calendar year of 1953; that the Respondent was under no duty to hire the men; that the Respondent had no vacancies calling for the hire of personnel until the late part of June or early July 1953; and that the Respondent chose to fill those vacancies when they did occur by requesting the Union to supply the required men; and (3) that at no time during the year 1953 was the Respondent under any obliga- tion to offer employment to the complainants, and the Respondent did not offer em- ployment to the employees either conditional or otherwise. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Golden Valley Electric Association, Inc., is a corporation organized and existing by virtue of the laws of the Territory of Alaska with its office and place of business in the city of Fairbanks, Alaska. Respondent is engaged in the production and distri- bution of electric power to consumers in the Fairbanks area. During the year 1953 it operated 160 miles of energized line and served approximately 1,500 customers. Among its customers are several defense installations in the Fairbanks area. Upon the pleadings, the evidence as a whole, and the Board's plenary jurisdiction over trade and commerce in the Territory of Alaska, I find that the Respondent is engaged in commerce within -the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 1533 , International Brotherhood of Electrical Workers, AFL, is a labor organization admitting to membership employees of the Respondent. 3 Local 1533, IBEW, Is hereafter called the Union. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The employment of Wandschneider and Alexander in the season of 1952 It, was not disputed at the hearing that the two complainants, Alexander, and Wandschneider, were both employed by the-Respondent during the construction season of 1952, as was a third witness by the name of Olson. All three of these men testified in a straightforward and forthright manner and their testimony is not sub- stantially disputed. I credit their testimony fully. In the spring of 1952, both Alexander and Wandschneider obtained employment with the Respondent as ground- men in the electrical crew. Olson, who had more experience at the trade, was hired as a journeyman, but soon was promoted to the position of foreman. All three men were directed in their work by Stephen S. Kerner, who at that time was the general superintendent of the Company, and by Kalman Brauner, who at that time occupied the position of manager. The employment of the men was uneventful in the season of 1952. At that time the employees of the Company were not represented by any union, and the Com- pany had no contractual relations with any union. From the testimony apparently the only employee having any contact with the Union at that time was Olson. However, he had obtained his employment with the Company by his own efforts, and not through the Union. As the summer of 1952 waned, the construction projects of the Company neared completion. All three of the above-named employees had homes in the vicinity of Lengby, Minnesota, to which they intended to return. However, they were anxious to return to Alaska the following spring and to resume their employment with the Company in the 1953 construction season. They spoke to Kerner and Brauner about obtaining a "leave of absence" to cover their unemployment by the Company during the winter months. In response to these requests Brauner gave each man a letter bearing his signature, as manager of the Respondent. At the hearing there was some dispute as to whether these letters constituted leaves of absence or merely letters of recommendation. However, there was no dispute that the letters were given to the men when they asked for a leave of absence to cover their unemployment during the winter. Although these letters were similar in tenor, they were not identical. Wandschneider's letter (General Counsel's Exhibit No. 2) read as follows: Mr. Walter Wandschnieder was employed by Golden Valley Electric as an apprentice lineman for the past six months and his services were very satis- factory. Due to the seasonal character of our construction in Fairbanks Mr. Wandschnieder's services are terminated unitl May 1, 1953. Golden Valley Electric Association hopes that Mr. Wandschnieder will be able to return to work next spring. Alexander's letter (General Counsel's Exhibit No. 12) read as follows. Mr. Harry Alexander is hereby granted a leave of absence from October 7th, 1952 to May 1st, 1953. Mr. Alexander has been employed as a groundman by Golden Valley for the past three months and his employment has -been very satisfactory. Golden Valley Electric Association will be more than willing to have him return in May 1953. Olson's letter (General Counsel's Exhibit No. 5) read as follows: Mr. Alfred Olson was employed by Golden Valley as a lineman for the past six months and his services were very satisfactory. Due to the seasonal char- acter of our construction in Fairbanks, Mr. Olson's services are terminated until May 1, 1953. Golden Valley Electric Association hopes that Mr. Olson will be able to return to work next spring because his services are welcomed during our construction program. Upon receipt of the letters the three employees returned to their homes in Minne- sota for the winter. B. The correspondence between Respondent and employees concerning employment in the season of 2953; the contract of the Respondent and the Union, dated March 30, 1953 As the spring of 1953 approached, in anticipation of going back to work, the three employees took steps to communicate with the Company. On January 26, 1953, Olson addressed a letter - to Manager Brauner informing him that Olson would be in 9 General Counsel's Exhibit No. 6. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC . 403 Fairbanks around March 15 if he could go to work at that time. He stated that he had talked recently with Alexander and Wandschneider and that they were prepared to leave for Fairbanks at about the same date. The tenor of the letter was that the men would be available for work around March 15, and that Olson would appreciate word from Brauner as to when construction would begin, so that he could make his plans to be on hand in Alaska. On February 2, 1953, Nick Eidem, a new manager of the Respondent, answered Olson's letter? He informed Olson that Brauner was no longer with the Company, but that he understood that Olson's work had been satisfactory, and as the new manager that he would like to continue Olson's services in the coming year. This letter also stated that "there will be considerable work this summer and if you can be here by March 15, 1953 we will be in need of your services." However on February 24, 1953, Eidem sent a second letter to Olson' This in- formed him that "Conditions have changed to the point where there does not seem to be any work lined up by the 15th of March as far as the Golden Valley Electric Association, Inc. is concerned." The letter also stated that later in the season there should be plenty of work. On February 27, 1953, Alexander also received a telegram from the Company. This stated, "Kerner no longer with association GVEA. Has no work available also inform Ray & Swede." On March 2, 1953, Olson wrote Eidem at some length concerning the situation. His letter (General Counsel's Exhibit No. 9) is as follows: Received your last letter the day I was prepared to leave for Fairbanks. Meanwhile Harry Alexander telephoned me the contents of your wire to him. It seems there has been quite a shake-up in the organization. Now if my work the past season was recommendable it seems to me my services can be of use again. Certainly the GVEA can't halt operation completely. I don't know if you have any of last years personal [sic] employed with you but if you have you can ask them of their opinion of my work. Now 4 of us received leave of absences from GVEA until May 1st from former Manager, Brauner. As you didn't state in your letter to me whether you wanted us to return at a later date or not I believe we need an explanation of some sort. Your first letter stated I would be of service to Association. Now I do know the other 3 men personally and am of the belief we can be of good service to the Association in present condition. I am sure at some date you can use the crew that proved efficient the past season. I have fairly good knowledge of all of GVEA's distribution and know I can get a crew that will work and be of service. Any one of us can be there within 2 weeks of notice. Here's expecting a fair explanation of what you have in mind. Also are you going to honor our leave of absence? On March 4, 1953, Eidem replied to Olson's letter (General Counsel's Exhibit No. 10) as follows: There is no criticism in regards to your work last year. We are at present negotiating with the Union for a contract therefore all hiring will be done through the Union. We have six men and a foreman for construction at the present and we are scratching bottom to keep them employed at the present. As to your returning to the Golden Valley Electric Association at May 1st will depend on the work and the Union Hall. The honoring of your leave of absence will be presented to the Union representative for his disposal relative to seniority. I hope this answers your letter. On March 31, 1953, Alexander wrote the manager of the Respondent as follows: In regard to my Leave of Absence from GVEA, from October 7th, 1953 to May 1st, 1953. Is it still in force? If so, will report for work, on or about May 4th, 1953. Would you please let me know by return mail, if this meets with your approval. 8 General Counsel's Exhibit No. 7. * General Counsel's Exhibit No. 8. 8 This wire read "Turner no longer with Association," but the parties agreed this was a misnomer for Kerner. 334811-55-vol. 109-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 4, 1953, Eidem as manager wrote Alexander to the effect that: . . . we regret to inform you that there is no work available at GVEA. Con- struction is very poor in Fairbanks this spring. We are now under union contract and anyone employed by us would have to clear through them. Despite the unfavorable tone of this correspondence the men, being desirous of their jobs, determined to go to Alaska. Olson and Wandschneider arrived at Fair- banks on April 27, 1953, and Alexander the following day. Meanwhile the negotiations of the Respondent and the Union had resulted in a contract on March 30, 1953. It is undisputed that on that date, the Union and the Respondent executed an agreement covering wages, hours, and working conditions of the Respondent's employees. By its terms, the agreement was to take effect on April 1, 1953, and continue until March 31, 1954. This contract covers a great many specific conditions of employment but those with which this case is principally con- cerned are as follows: 3.2 All employees of the Employer in the classifications listed in Section 7.1 of this Agreement shall become and remain members of the Union in good stand- ing as a condition of employment within thirty (30) days after employment. 3.3 The Employer agrees to notify the Union of job opportunities and to give preference of employment to the members of the Union in good standing when available. Should the Union be unable to furnish the Employer with workmen within forty-eight (48) hours of the time the Union-or its representative-re- ceives the request, the Employer shall be allowed to hire workmen from any other source in accord with Section 3.2. C. The dental of employment to the complainant Wandschneider, Alexander, and Olson all testified as to their efforts to obtain em- ployment with the Company and as to various conversations with both company and union officials. All three employees testified in a frank and candid manner which I found convincing. Their testimony was mutually corroborative, and was not disputed by witnesses of the Respondent, except as to some details. I credit the testimony of Wandschneider, Alexander, and Olson in its entirety. On February 27, 1953, Wandschneider and Olson went to the offices of the Com- pany. They introduced themselves to Eidem who informed them that he was the new manager replacing Brauner. The men told Eidem that they were applying for their old jobs, for which they had leaves of absence. Eidem told the men that during the winter the Respondent and the Union had entered into a contract, so the leaves of absence would not be honored, due to the fact that the Company was hiring all its personnel through the Union. Eidem said that he understood there were several leaves of absence issued to employees but that the Company would not honor any of them. Wandschneider asked if it would be possible for him to go to the Union, and be dispatched by the Union to the job. Eidem told the men that the Company would be starting construction work very shortly, and that inasmuch as reports showed that the work of the men had been satisfactory, he would be glad to have them back, if the men were dispatched to him by the Union. Eidem made it clear to the men that he had no objection to the men returning to their jobs , but that the matter was entirely in the hands of the Union. Wandschneider and Olson then went to the union hall at Fairbanks and talked to Laughlin, business manager for the Union. Laughlin greeted both men and stated to Olson, whom he knew, that the Union had a "new deal" this year. Laughlin explained that the Union's practice in prior seasons of permitting some nonmembers to work, pursuant to work permits issued by the Union, had been discontinued. Consequently, before he could go to work at the trade anywhere, Olson would have to make an application to join the Union . He would also have to take a lineman's test. In the event the executive board gave him a passing mark on the test, and the members voted in favor of his admission to the Union , he would then be per- mitted to join the Union and would thereafter be eligible to be dispatched from the union hall. Laughlin said that members of the Union who resided in Alaska would have first chance to go to work, and those with the oldest cards in the Union would have second chance. He said that no work permits would be issued to nonmembers, and that the Union would dispatch only members. Both Wandschneider and Olson told Laughlin that they had leaves of absence from the Company, but Laughlin told the men that the leaves of absence , as far as he was concerned, weren't worth the paper they were written on. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. 405, Laughlin told Wandschneider that before he could be dispatched he would have to make application to join the Union. If the executive board and the membership voted favorably upon his application, he would then be permitted to membership on his payment of his initiation of $50. After making application, as a prospective member, his name would be placed on the waiting list at the union hall and he would be dispatched in turn with other members. Wandschneider asked his chances of being dispatched to Respondent. Laughlin told both men there was very slight chance of that, as they would not be dispatched until all other members ahead of them on the list had been dispatched. Laughlin furnished applications to both of the men. Olson made application, passed his test, joined the Union, and was thereafter dispatched by the Union, but not to the Respondent. Wandschneider made application which was approved by the executive board and the membership. He paid his initiation fee, joined the Union, and thereafter for several weeks visited the union hall daily to see if he would be dispatched. However he was not dispatched. Wandschneider's attendance at the union hall gradually decreased from daily visits in early May, to visits of approximately twice a week during July. He inquired of Laughlin from time to time where he stood on the list, but the nearest he came to dispatch, was on an occasion when Laughlin told him he was seventh, on the list. Alexander testified that his experience was practically the same as that of Wand- schneider and Olson as regards his interview with Eidem on April 28, 1953. After that fruitless interview, he too went to the union hall and talked to Laughlin, but the latter accorded him different treatment than he had accorded Wandschneider and, Olson. Laughlin told Alexander that the leave of absence didn't mean a thing to, him, and said that he would not accept an application for membership in the Union from Alexander, because he then had too many groundmen waiting in the hall for dispatch. In ensuing months Alexander made repeated efforts to obtain an appli- cation for membership from Laughlin, but was refused on each occasion In the late summer, Alexander obtained other employment as helper to a truckdriver. However, though their efforts to obtain employment with the Company and through the Union had been unavailing, the men had made additional efforts to regain, their jobs. A few days after their talk with Laughlin at the union hall, the three men drove to the home of John Holm, a director of the Respondent. They explained the situ- ation to Holm as a director of the Company. Holm said that he could see no reason why the men shouldn't go back to work for the Company. He said that Eidem as manager had the authority to hire, but he could not see any reason why the men should not resume their work with the Company. He indicated that he would like to help the men. He also said that from their statement of the facts, he thought that perhaps the contract between the Company and the Union was in violation of the Taft-Hartley Law. He assured them that he would try to check on the matter, and that he intended to talk with both Eidem and Laughlin. He told them he would bring the matter up at a director's meeting in an effort to find out why the men had not been rehired. At the suggestion of Holm, the men also saw Ralph Persinger, another director of the Company, and explained their situation to him. He also indicated that he would look into the matter. It is undisputed that the situation concerning the three employees was brought to the attention of the board of directors at their meeting of May 21, 1953. The minutes of that meeting show an entry as follows: Nick Eidem was instructed to see Mr. Laughlin regarding the three men wha were given leave of absence from Golden Valley Electric Association, Inc., by Mr. Brauner. Mr. Eidem has requested these men when calling the Union for employees, but they did not send the men he requested. Mr. Eidem is to give further report regarding this at the next meeting. The minutes of the meeting of May 28, 1953, show Eidem's report in the matter. The entry is as follows: Mr. Eidem reported on his meeting with our attorney who stated that the letter issued last year to some of the employees relative to a leave of absence was, in the attorney's opinion, meerly [sic] a letter of recommendation. William Laughlin, the union agent, when contacted said the issue had been discussed with the men involved and they said they were not making an issue of it. When the directors' attempt to help the men failed, they decided that further efforts to obtain their jobs would be futile. Olson obtained employment with other employers through the union hall. Wandschneider accepted a job in a meat market, and Alexander became helper to a truckdriver. On June 2, 1953, both Wand- 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schneider and Alexander by letter notified the Company that pursuant to their leaves of absence they had returned to Alaska on April 27-28, 1953, that they had been available for work since that date, were presently available, and would continue to be available in the future. On September 1, 1953, they filed the charges herein. Stephen S. Kerner, the former manager of the Respondent, also testified in a very creditable manner. He testified that the employees worked under his super- vision in the season of 1952 and that he had given to each the letters previously mentioned; he stated that all three men were good workers. He testified that he was at a meeting of the board of directors when the terms of the contract between the Company and the Union were under discussion prior to its execution by the parties. Laughlin was also present at that meeting, representing the Union. On that occasion, Laughlin told the board of directors that under the contract which they were about to sign, that the Union would supply all personnel on the job, and in the event the Union could not supply the required number of men, the Com- pany then had the right to hire whomever they pleased , providing that those men joined the Union within 30 days. Kerner also remembered the occasion when the board of directors discussed the situation involving the complainants. On that occasion, the board of directors discussed the fact that certain men had been given leaves of absence and had not been hired back by the Company. Nicholai Eidem previously referred to in the testimony of the employee wit- nesses, was sworn as a witness by the General Counsel and examined as an adverse witness. Eidem testified that the board of directors of the Company on May 21, 1953, had discussed the case of the three men who had not been employed for the season of 1953, and that the board had left the matter entirely in his hands. Eidem said that on an occasion prior to May 15th, he had requested Laughlin at the Union to dispatch the three men to the Respondent, who at that time required their services. Although he requested Wandschneider, Alexander, and Olson, Laughlin dispatched to the job three employees named Delay, Torgensen, and Petersen. After the board of directors discussed the matter in the meeting of May 21, he had asked Laughlin why the latter had not dispatched the men, whom he had requested. Laughlin told Eidem that the Company had always requested his best men, and that was why he had sent Delay, Torgensen, and Petersen. After May 21, Eidem made no further efforts to persuade the Union to dispatch or clear the complainants. On examination he first said that after that date, the Company had no further need for men, but upon further examination he admitted that the Company had re- quested the Union for 2 men on July 15, 1 man on July 16, and 2 men on August 15. On these occasions , the Union sent men who had never worked on the job before, and the Company accepted them. In an attempt to justify the conduct of the Company, Eidem said that the Company preferred to hire men who were all-year residents of Alaska, who would be familiar with the Company's operation, and who would be available in an emergency. However on further examination he admitted that the men who were hired after May 15 to a large extent were not residents of Alaska but transients, were not familiar with the operation of the Com- pany, and that as far as he knew no emergency requiring construction men had arisen in any previous winter. Eidem also testified that at the end of the 1953 season he intended to reduce the force of 12 men presently employed in the construction department to approxi- mately 5. I credit Eidem's testimony , except that part dealing with his purported reasons for not hiring the men. In the light of all the evidence that part is not acceptable. I credit his version of his conversation with Laughlin in regard to the abortive request for dispatch of the men. A stipulation of the parties establishes that despite Eidem's words to the men, and his testimony, the Company had need of the services of the complainants in the 1953 season. The stipulation in the record is as follows: That on May 16 the following men and classifications shown were employed by the Company, Al Delay and Rosco Torgensen, both as linemen; William Petersen as groundman; on July 15 Hubert Swain as lineman , Robert Ladent as groundman . On July 16 Francis Burn as a lineman . On August 15 Robert Hufman as an apprentice-lineman, Ed Leith , lineman. September 15 Rudd Kolarich, warehouseman and Willard Spencer as assistant warehouseman. Further, that all of these individuals whose names I have just mentioned are card holding members of IBEW 1533 . I would like to amend that to read as follows: That all of the individuals shown in the classification of lineman, groundman or apprentice-lineman were at the time dispatched by the Union and they were in fact dispatched by the Union-card holding members of Local 1533 IBEW, AF of L. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. 407 In defense the Respondent called as a witness Kalman Brauner, former manager of Respondent. He testified credibly that he drafted a letter for each of the men at his request at the close of the 1952 construction season. He stated that there were several factors which terminated the employment of the men at that time. One factor was that the construction program was nearing completion , and the Company was short of construction funds. A second factor was that the men had families in the States and had planned to leave at about that time. Respondent also called William P. Laughlin , business agent of the Union, as a witness. After identifying his signature on the contract between the Respondent and the Union, he stated that he did not recall the complainant Alexander, although he might have engaged in conversation with Alexander if the latter accompanied Wand- schneider and Olson on their visits to the union hall. He testified that he had no recollection of Alexander ever asking him for a membership application . However, he admitted that it was possible that he might have refused to give Alexander an application for membership upon his request , because at about that time the Union had on its list approximately 13 men waiting for dispatch as groundmen. Inasmuch as there seemed to be no job opportunities in the foreseeable future, he had deter- mined not to accept applications or initiation fees from applicants who were ground- men. Laughlin stated that he remembered having a conversation with Wandschneider and Olson on April 27. On that occasion the men came to the union hall and in- formed him that they had been to the Company , who had informed them that the Company would not honor their leaves of absence . The men wanted to know what the Union could do about it, if anything. Laughlin examined Olson's leave of ab- sence and after reading it told them that as far as he was concerned , he felt that the Union was not a party to the leave of absence , and inasmuch as the Union had a signed agreement with the Company, the men would have to join the Union , and take a place on the bench , and be dispatched in turn with other members. Laughlin said that the trend of the conversation which followed was that the men claimed they should be given some consideration inasmuch as they had leaves of absence from the Company, and they asked if certain provisions of the contract did not give them some preference . He told them that the seniority provisions of the contract gave the men no special rights in the matter . Laughlin testified that Wandschneider made application for the Union , paid his initiation fee and was admitted to membership on May 11 , 1953. He was never dispatched to a job by the Union . Laughlin said that in late May or early June, Wandschneider had come to the union hall and asked Laughlin if it would be all right if he took a job at the Alaska Market as a clerk. Laughlin told him that it would be all right with the Union . On August 5, Wand- schneider came into the union hall to pay his dues . After he had paid up and was about to leave, Laughlin asked him if he was about ready to give up his job at the Alaska Market by giving his employer a week's notice so the Union could send him out on a job that was going to open in the very near future . Wandschneider said that he didn't want the job as he was "going outside" in a little while , and that he thought he would stay at the Alaska Market until he went outside. Laughlin re- membered an occasion when another officer of the Union had handed him an appli- cation for withdrawal signed by Wandschneider. He stated that the application-for- withdrawal card was denied because after the conversation of August 5, he had taken Wandschneider off the employment book , because Wandschneider at that time was not seeking employment through the Union . On cross-examination Laughlin said he was not sure whether the conversation concerning Wandschneider's giving notice to the Alaska Market took place on August 5 or not . He admitted that it could have taken place at a much later date as related by Wandschneider in his testimony. Laughlin explained the manner in which membership in the Union was acquired and in which men were dispatched to jobs. He said that when men first came to the union hall seeking dispatch to a job , the first requirement was that they had to pass an examination as to their skill in their classification in the trade. If they passed the examination , they then became entitled to make application for membership . Appli- cation for membership had to be submitted to the Local with at least 25 percent of the initiation fee. The prospective member's application then went to the executive board for its consideration . However at that point a man might be cleared and dis- patched to a job. If his application was favorably considered by the executive board it was then submitted to the membership of the Union. If the membership voted the man in, he then became a member of the Union upon complete payment of his initiation fee. Laughlin explained that if a man was dispatched to a job after an application was accepted, but before favorable action by the executive board or mem- bership, and then it turned out that the action of either the executive board or mem- bership was not favorable , that probably the man would not be fired from the job, but would be permitted to finish it. However, if a man made an application and was 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turned down by the executive board or the membership, that man would not be dispatched for a period of 6 months thereafter. It would be necessary for him to wait a 6-month period, make a new application, and then he could start the same pro- cedure anew. As to groundmen, Laughlin explained that there were no qualifica- tions of skill inasmuch as these men dug pole holes and anchor holes and furnished general assistance to the lineman. Consequently, no examination was given to groundmen. All they had to do was make application for membership and pay the initiation fee. However, if the availability list for groundmen was small, the Union would accept applications for membership in that classification, but if a considerable number of groundmen were on the waiting list, applications would not be accepted. He stated that a man who would not be given an application, would not be dispatched. Later on, if the availability lists in that particular classification shrank, the man would then be given an application. I credit Laughlin's testimony except that por- tion dealing with the conversations he had with either of the complainants or Olson. On those points I credit the employees' version of the conversations. The Affirmative Defenses of Respondent As stated previously, the answer of the Respondent set forth several affirmative defenses which I find to be either untenable or inappropriate to the issues raised by this complaint. The first affirmative defense alleges that the complaint should be dismissed be- cause of the failure on the part of the General Counsel to join in the complaint as an indispensable party, Local 1533, International Brotherhood of Electrical Workers, AFL. On the authority of both Board and court cases, I find that failure to join the Union as a party does not constitute adequate grounds for the dismissal of the com- plaint.6 Although the other allegations of affirmative defenses for the most part appear to miss the points at issue in this proceeding, I have given them such consideration as I deem they merit, in the light of all the evidence. Concluding Findings It will be noted from the summary above, that Eidem, on behalf of the Company, and Laughlin, on behalf of the Union, stated that the hiring of employees for the Re- spondent was governed by the contract executed by the parties on March 30, 1953. Prior to that time the Respondent had employed such men as made application for employment, without regard to the union membership of the applicants After that date however, Eidem in his correspondence to the employees stated that to obtain their jobs in the 1953 season the men would be required to obtain clearance from the Union. When he saw the men personally he reiterated that statement, and refused the men employment until they had fulfilled this condition precedent. It is equally clear from the testimony of the complainants and Laughlin, him- self, that the Union would not dispatch anyone but members, or those individuals who had been permitted to file an application for membership. Thus it appear from all the evidence that the conduct of the Respondent and the Union imposed "closed shop" conditions on Respondents' employment. Furthermore, a reading of the contract of March 30, 1953, discloses that to be the clear intention of the parties. By the contract the employer agreed "To notify the Union of job opportunities and to give preference of employment to the members of the Union in good standing when available." Only in the event that the Union was unable to supply the re- quired workmen within 48 hours, was the employer "allowed to hire workmen from any other source." Furthermore by another paragraph of the agreement, all non- union employees hired by virtue of this escape clause were required to become and remain members in good standing within 30 days after beginning such employment. To effectuate the illegal contract and the illegal purposes of the parties, the Union maintained a hiring hall wherein waiting lists of union members and those chosen to be prospective members were maintained from which the men were dispatched. Laughlin's testimony forecloses any argument that the hiring hall was operated on a nondiscriminatory basis. He said that no one but union members, or those per- mitted to make application to join the Union would be dispatched. The evidence, both the credited testimony of the witnesses and the documents which are exhibits, establishes that the Respondent with full knowledge of the dis- criminatory nature of the Union's hiring hall practices, entered into a contract with the Union whereby the Respondent made the Union's discriminatory devices its own. 6 Lee's Department Store v. N . L. R. B., 196 F 2d 411 (C. A. 9). GOLDEN VALLEY ELECTRIC ASSOCIATION, INC. 409 Furthermore, it enforced its illegal contract to the extent that it denied employment to employees who had served it well and faithfully, until those men submitted to the hiring hall practices of the Union, and obtained its clearance When Alexander applied for membership he was refused an application, and thus effectively barred from his employment. Wandschneider was permitted to join the Union, but he found that he was not dispatched. Thus both men were deprived of their jobs by virtue of the illegal conditions which the Respondent had placed on their employment. While there was some argument at the hearing as to whether the letters given by Brauner to the complainants constituted leaves of absence or letters of recommenda- tion, that point is not material to the issues. Whether the men were employees on leave of absence, or merely qualified workmen who applied for employment with the Respondent, they were discriminated against because they could not obtain clear- ance from the Union. However, in order that the record may be clear on this point, in view of the remedy hereafter recommended, I hereby find that the com- plainants at the opening of the 1953 construction season were employees of the Respondent on leaves of absence and that on April 27-28, 1953, they applied for active duty in their jobs, and that at all times thereafter they were ready, willing, and available to work for the Respondent, who at that time had need of their services. Upon the basis of the credited testimony and the exhibits, I find that: (1) The Respondent and the Union on March 30, 1953, executed a contract which imposed closed-shop conditions on Respondent's hiring practices whereby the Re- spondent hired only those men who were members of the Union, or applicants for membership in the Union, and were granted clearance by the Union; (2) To effectuate the purposes of that contract, the Union maintained a hiring hall whereby it maintained lists of members available for work from which it dis- patched men to employers in the Fairbanks area and that the Union restricted said list to its members and applicants to join the Union; (3) Pursuant to the contract aforementioned, the Respondent on April 27 refused to employ Walter Wandschneider, and on April 28, 1953, refused to employ Harry F. Alexander for the reason that they had not obtained work clearances from the Union; and (4) By executing and enforcing the terms of the aforesaid contract, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, which occurred in connection with Respondent's operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the contract of March 30, 1953, between the Respondent and the Union contains illegal provisions, it will be recommended that the Respondent cease and desist from giving effect to the entire contract 7 and from entering into, renewing, or enforcing any agreement which requires membership in the Union, or clearance from the Union as a condition of employment. Having found that: (1) From April 27, 1953, until the end of the 1953 construc- tion season, the Respondent discriminated against Walter Wandschneider in his hire, tenure, terms, and conditions of employment, and (2) from April 28, 1953, until the end of the 1953 construction season, the Respondent likewise discriminated against Harry F. Alexander, it will be recommended that the Respondent offer to Wand- Schneider and Alexander immediate and full' reinstatement to their former or sub- 7 Nothing in these recommendations shall be deemed to require the Respondent to vary or abandon any substantive provisions of such agreement or to prejudice the assertion by employees of any rights they may have acquired thereunder 8Immediate reinstatement requires that the Respondent (1) immediately notify Wand- schneider and Alexander that they are reinstated as seasonal employees of the Respondent, and (2) a reasonable time prior to the opening of the 1954 construction season, further notify the employees when construction for the 1954 season will begin, and their services be required Full reinstatement requires, in addition to performance of the acts above, that at the opening of the 1954 season the men be actually employed in their former or equivalent positions 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantially equivalent positions without prejudice to their seniority or other rights and privileges on a seasonal basis. It will be further recommended that each of the employees named above, be made whole by the Respondent for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him. It will be recommended that the loss of earnings for each employee be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289.9 It is also recommended that the Respondent be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of earnings due. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, AFL, Local No. 1533, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By executing and enforcing a contract between the Respondent and the above- named Union executed on March 30, 1953, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent employer has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 8 The period for which the employees will be made whole, shall begin in Wandschneider's case on April 27, 1953, and in Alexander's case on April 28, 1953. The period, in each case, shall end on the date seasonal employees in their classifications were last employed in the season of 1953. ROBERT K. GIBBS, PATRICK J. BUCKLEY & JOSEPH MIS, A PARTNERSHIP D/B/A Tin STATE MANUFACTURING COMPANY ; Tin STATE DIE CAST- ING CORPORATION ; AND TRI STATE PLASTIC MOLDING COMPANY, INC. and UNITED FURNITURE WORKERS OF AMERICA, CIO. Case No. 35-CA-523 (formerly 9-CA-643). July 26,1954 Decision and Order On February 15, 1954, Trial Examiner Louis Plost issued his In- termediate Report in this proceeding, 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 cer- tain affirmative action, as set forth in the copy of the Intermediate Re- port attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with re- spect thereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support of the exceptions. 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 In- 109 NLRB No. 63.