Haddock-Engineers, Ltd.

994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ate, or had Atninoff taken an adamant position in the December conference that he would not negotiate further with the Union because of his financial difficulties , the issue would be clearly drawn and the conclusion Inevitable . But the Union did not request a further conference and the evidence will not support a finding that because of financial stress Aminoff was unwilling to negotiate further . I am unable to find, therefore, on the basis of a predominance of the evidence considered in its entirety , that the Respondent refused to bargain within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent 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 It will be recommended that the Respondent cease and desist from engaging in the unfair labor practices found herein , and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All cutters and spreaders in Respondent's Los Angeles plant, excluding supervisory employees as defined in the Act, clerical employees , guards and watchmen, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union on October 1, 1952, was, and at all times since has been and now is, the exclusive representative of employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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. 6. The Respondent has not refused to bargain in violation of Section 8 (a) (1) and (5) of the Act. [Recommendations omitted from publication. ] HADDOCK-ENGINEERS, LIMITED; BEN C. GERWICK, INC.; SWINERTON AND WALBERG CO.; TUCKER McCLURE, INCORPORATED; d/b/a HADDOCK- ENGINEERS, LIMITED, AND ASSOCIATES IV, JOINT VENTURERS and WILLIAM C. TISSUE OPERATIVE PLASTERERS' AND CEMENT MASONS' INTER- NATIONAL ASSOCIATION, AFL, LOCAL UNION 797 and WILLIAM C. TISSUE. Cases Nos. 20 -CA-697 and ZO -CB-239. May 15, 1953 DECISION AND ORDER On February 25, 1953, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging 104 NLRB No. 128. HADDOCK-ENGINEERS, LIMITED 995 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 Union filed exceptions to the Intermediate Report. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case , and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications: We agree with the Trial Examiner that the Respondent Employer and Respondent Union violated Section 8 (a) (3) and 8 (a)0(1), and Section 8 (b) (2) and 8 (b) (1) (A), respectively. The record clearly shows that the Employer, who had a con- tract with the Union covering, inter alia, hiring practices, offered employment to union members Gilbreath and Tissue, but later declined to hire them when the Union, from whom it sought clearance for them,2 refused to refer them ahead of other members on the waiting list. There was no lawful con- tractual obligation for the Employer to limit employment to workmen referred by the Union.3 In these circumstances, the conduct of the Employer, of declining to hire Gilbreath and Tissue, violated Section 8 (a) (3) and 8 (a) (1) of the Act, and that of the Union, of refusing to refer Gilbreath and Tissue for employment, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act." ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: 1. The Respondent, Haddock- Engineers , Limited, and As- sociates IV, Joint Venturers, its officers, agents, successors, and assigns , shall: I Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three- member panel [Members Houston , Styles, and Peter- son]. 2In making this finding, as to the Union, we do not rely upon the complainants' testimony that Foreman Reddick and Employment Manager Zimmerman told them that Reddick and Zimmerman would place , and later had placed, personnel requisitions for them, nor do we rely upon Tissue's testimonyofZimmerman's reported telephone conversation with Mrs. Berry, wife of the union business agent . Though binding upon the Employer , this evidence, intended to prove that the Employer communicated to the Union specific requests for these individuals, is hearsay as to the Union. Philadelphia Iron Works, Inc.. 103 NLRB 596; N. L. R. B. v. Meat Cutters Local, 202 F. 2d 671 (C.A. 9). We do rely upon the other evidence recited in the Intermediate Report, and also upon the testimony of the union president, Cordell, who admitted that Business Agent Berry asked him what to do about the Employer 's requests for Gilbreath and Tissue. SPhiladelphia Iron Works, Inc., supra 4As the complaint herein is confined in its allegations to specific instances of discriminatory refusals to hire, pursuant to the Illegal hiring provisions in the collective - bargaining agree- ment, we limit the remedy to the illegal provisions only. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. Cease and desist from: (1) Giving effect to those provisions of its contract dated December 18, 1950, with Operative Plasterers' and Cement Masons' International Association, AFL, Local Union 797, or to any extension , renewal , modification , or supplement thereof, which require applicants for employment to obtain clearance from that labor organization as a condition of employment, unless such referrals are made on a nondiscriminatory basis, pursuant to an agreement entered into in conformity with the Act. (2) Encouraging membership in the Respondent Union or in any other labor organization of its employees, by discriminating in the aforesaid, or in any other manner, with respect to the hire and tenure of employment, or any term or condition of employment, in violation of Section 8 (a) (3) of the Act. (3) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights under Section 7 of the Act. b. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Make whole Sidney W. Gilbreath and William C. Tissue for any loss of earnings suffered , in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Upon request , make available to the Board or its agents for examination or copying all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary or useful to analyze the amounts of back pay due under the terms of this Order. (3) Post at its office in Las Vegas, Nevada, copies of the notice attached hereto as Appendix A.5 Copies of such notice, to be supplied by the Regional Director for the Twentieth Region, shall, after being duly signed by the Employer's authorized representative, be posted by it immediately upon the receipt thereof, and maintained by it for sixty (60) consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Employer to insure that suchnotices are not altered, defaced, or covered by other material.' (4) Notify the Regional Director for the Twentieth Region in writing within ten (10) days from the date of this Order what steps the Respondent Employer has taken to comply herewith. 2. The Respondent, Operative Plasterers' and Cement Masons' International Association, AFL, Local Union 797, its officers , representatives , and agents , shall: a. Cease and desist from: 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 6In the event that the Employer does not maintain such an office in the vicinity of Las Vegas, Nevada, or have any employees in that vicinity ,this recommendation may be eliminated by stipulation between counsel for the General Counsel and counsel for the Employer. HADDOCK-ENGINEERS, LIMITED 997 (1) Giving effect to those provisions of its contract dated December 18, 1950, with Haddock-Engineers, Limited, and Associates IV, Joint Venturers, or to any extension , renewal, modification, or supplement thereof, which require applicants for employment to obtain clearance from the above-named labor organization as a condition of employment, unless such referrals are made on a nondiscriminatory basis, pursuant to an agree- ment entered into in conformity with the Act. (2) Causing or attempting to cause Haddock - Engineers, Limited, and Associates IV, Joint Venturers, its officers, agents, successors , or assigns , to discriminate against its employees in the aforesaid, or in any other manner, with respect to their hire or tenure of employment, or any term or condition of employment, in violation of Section 8 (a) (3) of the Act. (3) In any like or related manner restraining or coercing employees of Haddock- Engineers , Limited, and Associates IV, Joint Venturers, its successors or assigns, in the exercise of their rights under Section 7 of the Act. b. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Make whole Sidney W. Gilbreath and William C. Tissue for any loss of earnings suffered, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Post at its business office in the Las Vegas area copies of the notice attached hereto and marked "Appendix B." T Copies of such notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by a representative of Respondent Union, be posted by it imme- diately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material.8 (3) Mail to the Regional Director copies of Appendix B for posting, the Respondent Employer, Haddock-Engineers, Limited, and Associates IV, Joint Venturers, being willing, in places where notices to employees are customarily posted. Copies of the notice, to be furnished by the Regional Director, shall, after being signed as provided in paragraph 3 b (2), above, be forthwith returned to the Regional Director for the posting. (4) Notify the Regional Director for the Twentieth Region in writing within ten 10) days from the date of this Order what steps the Respondent Union has taken to comply herewith. 7Subject to amendment as indicated in footnote 5. 8 In the event the Employer does not maintain an office at Las Vegas, Nevada, or have employees in that area, this particular paragraph of the Order may be omitted upon stipu- lation of counsel for the General Counsel and counsel for the Union. 283230 0 - 54 - 64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT give effect to those provisions of our contract dated December 18, 1950 , with Operative Plas- terers' and Cement Masons' International Association, AFL, Local Union 797, or to any extension , renewal, modification , or supplement thereof , which require appli- cants for employment to obtain clearance from that labor organization as a condition of employment , unless such referrals are made on a nondiscriminatory basis, pur- suant to an agreement entered into in conformity with the Act. WE WILL NOT encourage membership in such labor organization by discriminating in the aforesaid , or in any other manner , with respect to the hire and tenure of employment , or any term or condition of employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL make Sidney Gilbreath and William C. Tissue whole for any loss of pay suffered as a result of the dis- crimination against them. All our employees are free to become , 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 affected by an agreement in conformity with Section 8 (a) (3) of the Act. HADDOCK-ENGINEERS, LIMITED, AND ASSOCIATES IV, JOINT VENTURERS By ................ . ..................................... (Representative) Dated ................ ....................................................... (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. HADDOCK-ENGINEERS , LIMITED 999 APPENDIX B NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS AND MEMBERS OF OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION, AFL, LOCAL UNION 797 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT give effect to those provisions of our contract dated December 18, 1950, with Haddock-Engineers, Limited, and Associates IV, Joint Venturers, or to any extension, renewal, modification, or supplement thereof, which require applicants for employment to obtain clear- ance from this Union as a condition of employment, unless such referrals are made on a nondiscriminatory basis, pursuant to an agreement entered into in conformity with the Act. WE WILL NOT cause or attempt to cause the above- named Employer, its officers, agents, successors, or assigns, to discriminate against its employees in the aforesaid or in any other manner with respect to their hire or tenure of employment, or any term or condition of employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of such Employer in the exercise of rights under Section 7 of the Act. WE WILL make Sidney Gilbreath and William C. Tissue whole for any loss of pay suffered because of the discrimi- nation against them. OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION, AFL, LOCAL UNION 797 By .................. . ....................................... (Representative) Dated ................ ....................................................... (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. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon separate charges, duly filed and later amended , by William C. Tissue, an individual, against the above- named Joint Venturers , herein called the Employer or Haddock, and against Operative Plasterers' and Cement Masons' International Association, AFL, Local Union 797, herein called the Las Vegas Local or the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, caused the cases to be consolidated and issued a consolidated complaint dated October 21, 1952, against Haddock and the Union, collectively called herein the Respondents, alleging violations of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the consolidated complaint, the order consolidating the cases, and a notice of hearing were duly served upon Haddock, the Union. and Tissue. Pursuant to notice a hearing was held on November 17 and 18, 1952, at Las Vegas , Nevada. before the undersigned Trial Examiner duly designated by the Associate Chief Trial Ex- aminer. The General Counsel, Haddock, and the Union were represented by counsel, par- ticipated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues . All parties were offered opportunity to argue upon the record and to file briefs . No argument was had, but the Respondent Union filed a brief which has been considered. With respect to the unfair labor practices the complaint alleged in substance that: (1) On December 18, 1950, Haddock and the Union executed a labor agreement violative of the Act, in that it required individuals to obtain clearance from the Union before Haddock would hire them; ( 2) on March 1, 1952, Haddock refused to employ Sidney Gilbreath, and on March 27, 1952, refused to employ William C. Tissue for the reason that they had not obtained clearances from the Union pursuant to the aforesaid labor agreement; (3) the Union attempted to cause and did cause Haddock to refuse to employ Gilbreath and Tissue on the dates set forth above because neither of them had obtained a clearance from the Union; (4) both the Employer and the Union by giving effect to the terms of the labor agree- ment above mentioned are thereby discriminating in regard to the hire, tenure, terms, and condition of employment of employees thereby encouraging membership in a labor organization; (5) the Employer by the above conduct has violated Section 8 (a) (1) and (3) of the Act, and the Union has violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act. The Respondent Union duly filed its answer alleging that: (1) It did not have sufficient knowledge or information to form a belief as to the allegations contained in paragraphs I and II of the complaint which set forth facts relating to the interstate commerce aspect of the business operations of the Employer; ( 2) it admitted paragraphs III and IV of the complaint which stated that the Union is a labor organization, and that the Union and the Employer had executed on December 18, 1950, the labor agreement alleged in the complaint; but (3) it denied the commission of any unfair labor practices. The Employer also filed an answer denying some allegations of the complaint . However, the answer neither admitted nor denied paragraph I of the complaint, which alleged facts showing that the operations of the Employer affected interstate commerce within the meaning of the Act. Early in the hearing, upon appropriate motion of the General Counsel, the Trial Examiner ruled that since the Employer's answer did not controvert the allegation as to commerce, it was deemed admitted. At the close of the evidence, the Employer withdrew its answer, taking the position that it was intentionally defaulting, pursuant to a stipulation between counsel for the General Counsel and counsel for the Employer. By the terms of this stipulation the Employer withdrew its answer thereby permitting the Trial Examiner and the Board to issue such order as was deemed proper in the premises . The General Counsel by virtue of the same stipulation agreed that any order issued herein by the Trial Examiner , or the Board, would be directed against only the joint venture conducted under the title of Haddock-Engineers, Limited, and Associates IV, Joint Venturers; it being expressly stated that the order would not be directed against the Joint Venturers, indi- vidually. In making this stipulation, counsel for the Employer and for the General Counsel stated that the operations of the joint venture had come to an end, thereby precluding some features of the Board's customary remedy, and that the joint venture had ample funds to provide any financial remedy ordered by the Trial Examiner or the Board. On the basis of the statement of counsel for the General Counsel and counsel for the Employer, the above stipulation was accepted by the Trial Examiner. Upon the entire record in the case, and from my observations of the witnesses, I make the following: HADDOCK-ENGINEERS . LIMITED 1001 FINDINGS OF FACT The Employer is a joint venture with its principal office at Las Vegas , Nevada. It is engaged in engineering, building, and contracting. During the year ceding December 31, 1951, the Employer's purchases of construction materials and supplies amounted to in excess of $2,000,000 in value, of which amount in excess of $1,900,000 in value represented shipments of such materials and supplies from points located outside the State of Nevada to points within the State of Nevada where it was engaged in construction. During the same period of time Respondent Employer entered into contracts valued in excess of $5,000,000 with the Atomic Energy Commission of the United States Government for construction jobs essential to the national defense of the United States.' IL THE UNION Operative Plasterers' and Cement Masons' International Association , AFL, Local Union 797, is a labor organization within the meaning of Section 2 (5) of the Act. IIL THE UNFAIR LABOR PRACTICES A. The illegal contract The Employer is engaged in extensive construction in the State of Nevada for the Atomic Energy Commission. It is admitted by the pleadings and was not disputed at the hearing that the Employer but its agent, Southern Nevada Builders Chapter . Associated General Contractors of America, and the Las Vegas Builders Exchange, entered into a contract with the Respondent Union on December 18, 1950 . By its terms the contract was to remain in effect until June 1, 1954. Section II (C)(1) thereof requires individuals to obtain clear- ances from the Union before they may be engaged by the Employer. The section in question reads as follows: C. That in the employment of men for all work on the construction jobs in the territory above described, the following provisions, subject to the conditions of Article II-A. above, shall govern: 1. That the CONTRACTORS shall call upon the UNIONS having jurisdiction, or their Agent, for such men as they may from time to time need , and the UNIONS or their Agent shall immediately furnish to the CONTRACTORS the required number of qualified and competent workmen and skilled mechanics of the classifications needed by the CONTRACT. Reasonable advance notice (but not less than 24 hours) will be given by the CONTRACTORS TO the UNIONS or their Agent upon ordering such work- men or mechanics, and in the event that 48 hours after such notice the UNIONS or their Agent shall not furnish such workmen, the CONTRACTORS may employ men procured from any other source or sources regardless of their union affiliations . if the men so employed are members in good standing of another Local Union whose International Union is signatory to this Agreement, the UNIONS agree that such men shall be ad- mitted to membership in the appropriate Local Union upon terms and qualifications not more burdensome as to transfer fees, dues, or otherwise, than those applicable at such time to the member of such Union. If men are so employed who are not mem- bers of the UNION they shall, before going to work, report to the office of the appropriate UNION or its Agent for clearance as to alifications for member- shig and they shall cleared unless sufficient evidence o disqualification for mem- bership is shown and when cleared they shall, within five days of such employment, make application for membership in the appropriate craft trade UNION signatory hereto, and complete their membership at the next regular meeting of said Union. Applications for membership by such men shall be received and accepted by each Union and clearance given upon terms and qualifications not more burdensome (as to initiation fees or dues or otherwise) than those applicable at such time to other appli- cants to such Union. 2. Contractors may transfer members of the six basic crafts from the jurisdiction of one local union to the jurisdiction of another local union of the same craft up to the CA I The above finding is based upon the pleadings, General Counsel's Exhibit No. 3 in evi- dence, commerce data supplied by Haddock to the Board in the course of the Board's investi- gation of the charge, and the credited testimony of John McGrath. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maximum permitted at the date of this Agreement by the International Constitution and By-Laws of the craft involved, but in any event not less than 10 per cent of the current requirements by crafts on the project to which the transfers are to be made, including a maximum of two foremen in each craft, Contractors recognize the desireability of employing members of the local union having jurisdiction to the greatest possible extent. Workmen employed by any Contractor, pursuant to the terms of this Agreement, and remaining in good standing in the craft in which they are employed, shall not be removed nor transferred by the UNIONS unless the prior approval of the Contractor has been obtained. B. The hiring procedure; background At the hearing it was not disputed that Haddock and the Union enforced the hiring arrange- ment set forth in the contract above. Both John McGrath, director of labor relations for Haddock, and Jerry Berry, business representative of the Union, testified that the Company set up certain procedures to implement the plan of hiring . By company orders, foremen who needed men sent a requisition for personnel to Marvin Bryan , paymaster and per- sonnel man on the job site. Bryan relayed the requisition to Paul Zimmerman , employ- ment manager at the Company 's employment office at Las Vegas . Zimmerman then relayed the request for personnel to the appropriate craft union of the Building Trades at Las Vegas . Apparently this procedure was followed by all the foremen on the job site , including William Lewis Reddick, foreman of the cement finishers . However it is apparent from the entire record that Reddick, in following the prescribed procedures , varied them to suit his own purposes in the hiring of employees. The testimony of Reddick, who testified late in the hearing , shed considerable light upon the present controversy. Also it is apparent from the entire record that considerable ill feeling was engendered within the Union between Foreman Reddick and his friends, and Jerry Berry , business representative of the Union , and his friends , in the process of the employment of cement finishers. Reddick testified credibly that he has been a cement finisher for about 10 years and that he is a member -of the Union. In September 1951 he learned of the prospect of a job at the Haddock project from 2 cement finishers , Cathcart and Byers . Shortly thereafter he went to work for Haddock as a cement finisher . About 2 weeks after he was on the job, he was offered the position of foreman of cement finishers by Giffon, the area superin- tendent. He accepted. Charles Moore was the job supervisor over Giffon. When he was made foreman, Moore told Reddick that he could hire and fire as he saw fit , that it was his job, and he expected him to take care of it . Reddick continued as foreman of cement finishers from that time until April 17 , 1952. 2 when the cement work was finished, and his employment terminated. Reddick testified that he construed Moore 's remarks to him, that he had authority to hire and fire, as giving him complete authority on that subject. However he testified that when he needed cement finishers he requisitioned them through Bryan , on the job site, who in turn called Zimmerman, at Las Vegas, who in turn notified the Union . Reddick stated that using this procedure he had hired 5 or 6 cement finishers prior to March 7 , 1952. However, Reddick varied the established procedure in that he requisitioned a particular cement finisher by name from Bryan in each instance . Bryan relayed the requisition, and on e following day the Union sent the particular cement finisher who had been requested by name. By that process Reddick hired the particular cement finishers that he wanted. On March 6, 1952, an event occurred which disturbed Reddick 's procedure for obtaining picked men on the job. On that date Moore , the superintendent, told Reddick that he had been in conference with the Atomic Energy Commission officials , and that there would be no more overtime on the job. He told Reddick that he wanted him to organize his crew so that there would be no more overtime . Moore said that he had checked the amount of work to be done by cement finishers , and the amount of overtime they had used in the past, and that he had determined that Reddick would need three additional cement finishers , and that he had put in a requisition for three men. Reddick suggested to Moore that the men should be put on a staggered basis; this was agreeable to Moore . On the same day Reddick sought out a cement finisher by the name of Samuel E. Alsip at his home, and offered him a job as foreman of cement finishers , to be in charge of the men at times when Reddick could not be on the job because of the rule against overtime. When Alsip agreed to accept the job, Reddick immediately put in a requisition for him by name and the following day Alsip came ZThe witness was not certain of this date, but it is contained in Employer 's Exhibit No. 5. HADDOCK-ENGINEERS , LIMITED 1003 on the job. Also on the following day the Union sent to the job cement finishers Ward, Bell, and Davis. A payroll analysis of cement finishers (Employer 's Exhibit No. 5) establishes that Alsip, foreman, and Ward, Bell, and Davis, cement finishers, all started work on March 7. 1952. Reddick testified that he observed the work of Ward, Bell, and Davis and came to the conclusion that they were unsatisfactory employees. On March 13 he notified them that they would be discharged as of the close of business the following day. However, he did not tell the men that their performance of duty was unsatisfactory , he merely told them that he no longer required their services as the cement finishing was practically completed. Ward. Bell, and Davis were terminated at the close of business on March 14. Meanwhile, Reddick had decided that he actually needed two cement finishers, and he knew that cement finishers Beeman and Byers were then unemployed and available . Therefore, on March 13, the day on which he gave notice of termination to Ward, Bell , and Davis , he requisitioned Beeman and Byers name. The request was relayed to the Union and Beeman and Byers appeared on the job and began work on March 14. In his testimony Reddick explained that he always requested the men by name , because he knew the abilities of the various men, and wanted only the most competent cement finishers. I do not credit that portion of his testimony . On the basis of the entire testimony it is ap- parent that Reddick was seeking to favor certain cement finishers over others for his own reasons, and that Ward , Bell, and Davis were discharged to make room for Beeman and Byers who were considered more acceptable by Reddick. It was after the above events had occurred that the men named as discriminatees in the complaint appeared on the scene at Las Vegas. C. The discrimination against Gilbreath and Tissue Sidney W. Gilbreath was the first to appear . He testified that he had been a member of the Las Vegas local, in previous years , but had left Las Vegas and gone to Yuma, Arizona. While at Yuma he worked as a cement finisher out of the Phoenix local of the Union . On or about March 13, 1952, he returned to Las Vegas . He knew Reddick, and that Reddick was foreman of cement finishers for Haddock. He sought out Reddick at his home and asked for a job. Reddick said that he had a job for him, but that he would have tb get a clearance from the Union. Gilbreath then sought out Jerry Berry, business representative of the Union at the union office over the Boulder Club in Las Vegas , Nevada. Gilbreath requested that Berry give him a clearance so that he could go to work on the Haddock job . Berry pointed out that Gilbreath 's union book was not on file with the local, and Gilbreath requested Berry to send to the Phoenix local for his book. About 5 days later Gilbreath 's book arrived from the Phoenix local Gilbreath again renewed his request for clearance but Berry would not give him the clearance . On March 17 Gilbreath went to Reddick and told him that he couldn't get a clearance from Jerry Berry. Reddick said that he would initiate a requisition for Gilbreath on the following day. On the next morning Gilbreath went to the union office and told Berry that he was expecting a call to go to work at Haddock. Gilbreath stayed around the union office for some time , but Berry said that no call had come for Gilbreath. Gilbreath saw Reddick that night and Reddick informed him that he had placed a call for Gilbreath with the Company.' Reddick said that he would place another call in the morning, and he told Gilbreath to see Zimmerman at the employment office at Las Vegas , and to inquire if Zimmerman had phoned the Union. On the following morning Gilbreath phoned Zimmerman at the employment office and asked him if he had called the Union for him on the previous day. Zimmerman said that he had. Zimmerman asked where Gilbreath was phoning from, and Gilbreath replied that he was at the Boulder Club, downstairs from the union office . Zimmerman told him to go upstairs to the union office, and that he would put through a call to the Union for Gilbreath immedi- ately. Gilbreath went upstairs, and in a few moments the phone rang . Mrs. Berry, the wife of Jerry Berry, who also worked in the union office, answered the phone . Gilbreath could not hear what Mrs. Berry said on the phone. He asked her if the call was for him, and she said that it was not. On the following day Gilbreath saw Berry at the union office. He asked Berry why the latter had told him that the Company had not called for him, when in fact the Company had called for him. Berry admitted to him that the Company had called. Berry told Gilbreath that there were other members of the Las Vegas local who were out of work , and that their names were on the waiting list, and that Gilbreath would have to take his turn at employment after the men on the list. 'Apparently this was the first requisition for Gilbreath. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BDARD Gilbreath stayed around Las Vegas for about 2 weeks. On or about April 5, 1952, he had another talk with Reddick, and told him that he was going back to Yuma, that he could not get a union clearance. On cross -examination Gilbreath stated that at the time he applied for a clearance at the union hall there were 23 cement finishers , members of the Union , on the waiting list. He also stated that Berry had told him that there were approximately 23 cement finishers waiting for work, and that Haddock had quit hiring cement finishers, some days previous to Gilbreath's application. Gilbreath testified in a straightforward manner. I credit his testimony. William Claude Tissue, the charging party herein, testified that his home is at Long Beach, California . He joined the cement finishers International Union in 1949 at Houston, Texas, as an apprentice , and later became a journeyman . Tissue testified that Cathcart, another cement finisher, visited at his home in Long Beach around March 11, 1952. From Cathcart he learned that there was the prospect of a job at Las Vegas. In the following week, approximately March 16, 1952, Tissue went to Las Vegas He saw Cathcart and the two men then went to Reddick's home. Tissue asked Reddick what his chances were for going to work. Reddick replied that he would put Tissue to work anytime that he had an opening. Reddick explained that at that time he had an order in for Gilbreath . On March 17 Tissue went to the union offices above the Boulder Club in Las Vegas He asked Berry, the business agent, if he had any jobs and deposited his traveler's book. Berry replied that he didn't have any work at that time, but that he would put Tissue's name on the list. Berry accepted Tissue' s book. However , Berry put Tissue's name on the list as a plas- terer, and not as a cement finisher . About 4 days later Tissue noticed this, and called it to Berry' s attention. Berry then put Tissue' s name on the waiting list of cement finishers, Tissue went back to the union office every day during the following week and talked to either Berry or Mrs Berry . On each occasion he asked if there was an opening for him and they said no. Tissue at the end of the week saw Reddick and asked him if any opening had occurred. Reddick replied that none had occurred. On March 26 Tissue saw Reddick again. In this conversation Reddick told Tissue to go down to the union hall the next morning; that Reddick would place a call for him by name to go to work at Haddock. Tissue went to the union offices about 8 o ' clock the next morning. He saw Berry and Mrs. Berry. He asked Mrs Berry if there had been any call for him and she replied in the negative. Later in the morning he asked again if there had been a call for him and again Mrs. Berry replied in the negative. He then went to the office of Haddock at Las Vegas and talked to Zimmer- man. When he entered the office he heard Zimmerman, who was talking to someone on the telephone, mention his name When Zimmerman finished his conversation , he told Zimmerman that his name was Tissue. Zimmerman said that he had been talking about him; that he had just had a call for Tissue from Bryan at the job site . Zimmerman then told Tissue that he had placed a call for Tissue at the union hall. Zimmerman suggested that Tissue go back to the union hall, and inquire if there had not been a call for him. Tissue acted on the suggestion and at the union hall asked Mrs. Berry if there had been a phone call for him. She answered in the negative. Tissue started to walk away, when Berry called him and invited him to step inside the office. He asked Tissue who he expected to call him, and Tissue replied that he expected a call from Haddock. Berry then said that he had already sent a man out to Haddock.4 Tissue said that Haddock must have called for him by name. Berry replied that he couldn't send Tissue out there because the job was filled at the present time. Tissue then called Zimmerman and asked if Zimmerman had placed the call a second time. Zimmerman said that he had . Tissue then went over to the employment office of Haddock and talked to Zimmerman. Zimmerman told him that he had talked to Mrs. Berry. Zimmerman said that when he requested that Tissue be sent to the job, Mrs. Berry had asked, "Will you take anyone but Tissue?" Zimmerman had said, "I won't say that. I have a call here on my desk for William C. Tissue." Mrs. Berry then asked again, if he would take anyone but Tissue, and Zimmerman answered that he was not committing him- self on that proposition , that he had a call for Tissue; that ended the conversation. Then Tissue asked Zimmerman to send him out to the job without a clearance , but Zimmerman said that he wouldn't do that , that he would get into trouble if he sent anybody out to the job without a clearance from the Union. Tissue then went back to the union office and asked Berry if he was going to give him a clearance . Berry said that he was not . At that point Berry left in his car and went to Zimmerman ' s office. Tissue followed Berry in his car. When Tissue got to Zimmerman' s office he saw that Berry was there with a business agent 4As will appear the man so dispatched by the Union was cement finisher Ward. HADDOCK-ENGINEERS, LIMITED 1005 of the laborers and cement finisher Troy Ward . Tissue waited outside while Zimmerman, Berry , Ward, and the laborers' representative conferred in Zimmerman's office. When the conference broke up, and Berry had left. Tissue asked Zimmerman about going to work. Zimmerman said that Berry had requested him not to request any more people for the job. That evening Tissue saw Reddick again, and then wired the international president of the Union. On the following morning he again requested a clearance from Berry and was again refused . Berry said that Zimmerman and Bryan at the job site both knew that the Union did not send out anybody that was requested by name. Berry said that he was not going to send Tissue out to the job. Tissue then went back to Zimmerman again . Zimmer- man told him that he had made an agreement with the local that he would not send out any- one to the job site without a clearance from the Union . Thereafter Tissue filed the charge in the instant case . Tissue testified in frank and candid manner . I credit his testimony. The man that the Union sent to the job on March 27 was Ward . That is clear from the testimony of Reddick . Reddick testified credibly that he asked Bryan to put in a can for Tissue, and that Ward showed up on the job . When he saw Ward he asked him what Ward was doing there. Ward said that he was going to work . Reddick told Ward that he had put in a call for Tissue, and that Ward's work was not satisfactory , and that he didn't want Ward on the job, that Ward was not to take out his tools, or to leave them on the job, and that Ward was to catch a ride back to town immediately. Reddick told Ward that he would be paid "showup time," but that he was to get his tools and leave. 5 Reddick gave Ward a termination slip which stated that Ward's work was unsatisfactory. Reddick testified that several days after this incident he saw Berry, the business agent, on the job. Reddick asked Berry why he wouldn't send out Gilbreathor Tissue . Berry told Reddick that he had men in the office who were on the waiting list and that he wanted to send them before he sent Gilbreath or Tissue. Reddick told Berry that the job was spread over 30 miles, and that he needed men he could trust to keep going, whether they had supervision or not, and that it would be a favor to him if Berry would okay the men he wanted. Berry insisted that he had to send the other men first. On cross-examination Reddick admitted that after the Tissue incident he did not make any requests for cement finishers . Reddick admitted that the job was in its final stages, so he used the tools of the trade himself, and finished the job without hiring any more men . Reddick admitted that he put in his first request for Gilbreath about March 19 and his first request for Tissue on March 27 . Those were the only requests he made after March 14. According to the payroll analysis (Employer's Exhibit No. 5) the cement job must have been coming to a conclusion at the time that Gilbreath and Tissue were requested . During the week March 16-23 the cement finishing force was composed of the following : Reddick and Alsip, foremen; VanderVeen, Cathcart, Die, Beeman, and Byers ; the same 7 men con- tinued to work in the following 3 weeks . However on April 11, 1952, Alsip, VanderVeen, Die, Beeman, and Byers were discharged because their services were no longer needed. The last 2 cement finishers on the job were Reddick , foreman, and Cathcart, who continued on the payroll until April 17 when the cement work was finished and they were terminated. Jerry Berry , the business agent of the Union, was called as a witness by the Union. He testified that his original instructions as to the procedure to be used in hiring for the Had- dock job were contained in a letter dated August 8, 1951 .6 This letter, over the signature of John McGrath, director of personnel, stated that the Union was not to honor orders for men except when they were placed by the Employer' s employment office at Las Vegas, Nevada. If ^ men were dispatched to the job on orders from any other source , the Company would not be responsible for any " showup time" which might be claimed Berry stated that there was no change in the company policy from that time until the job was finished . Berry stated that if the Union received a request for men from the employment office of Haddock that the Union supplied the number of men required , taking the names of the men from the waiting list. If a man was requested by name , the Union sent that particular man. Berry testified that on March 6, 1952, he received a request from Haddock for 3 men. He dispatched Ward, Davis , and Bell. They began work on March 7, 1952, and were laid off on March 14, 1952, for the reason that their services were no longer needed . On March 13, the same day that the 3 men were notified that they were to be terminated, 2 other men were requested by name by Haddock. Because of this incident Berry went to the job site and talked to Moore, the superintendent of the job on March 20, 1952 . In this conversation Berry asked 6It was stipulated by the parties that Ward did not work but was paid 9 hours' "show- up" time. 6Employer's Exhibit No. 1. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moore why 3 men were laid off, and 2 others requested by name the same day . Moore said that he didn't know anything about it ; that he didn't know that the 3 men had been laid off, or that the others had been requested . Berry had honored the request for 2 men received on March 13 by dispatching Byers and Beeman to the job site. Berry testified that the union office received a call on March 27 , 1952, from Haddock asking that "a man" be sent to the job site. The call was received in Berry's absence and when he came to the office he dispatched Ward to the job. Berry later learned that when Ward got to the job site he was not allowed to work, but was told to go back to the union hall. When Ward was rejected , Berry and Hearne, a representative of the Laborer's Union, went to the employment office of Haddock at Las Vegas , Nevada. When Berry got to the office of the Company he saw Zimmerman and he noted that Tissue was also there. Berry asked Zimmerman why Ward was not allowed to go to work , after he had been sent to the job site. Zimmerman said he didn't know exactly why he had been sent back, that evidently Ward was not wanted on the job by the foreman . That was all the conversation that Berry and Zimmerman had on the subject. Berry stated that when Tissue and Gilbreath deposited their union books with the Local. Berry put their names on the out-of-work list. At that time there were from 20 to 23 local men who were classified as cement finishers who were out of work and awaiting employment. Berry stated that both Gilbreath and Tissue requested that they be cleared by him . They also told him that Reddick the foreman wanted them on the job . Berry stated that he never re- ceived any call from Haddock for either Tissue or Gilbreath . When they asked him concern- ing the calls , he explained to them that he had received no requests for them, and that he was not allowed to send them out without a request. Shortly after March 27 when Ward was not permitted to start work, Berry went to the job site and had a conversation with Reddick. He asked Reddick why Reddick sent men to him demanding clearance, when there hadn't been a request from the Company for the men. Berry at that time explained to Reddick that he had 23 men out of work . Reddick told Berry that he would not accept any of Berry's 23 men, that he was determined to make a place for Tissue and Gilbreath, and that Reddick would refuse to take any of the other men on the list, if he could not have Tissue and Gilbreath . Thereafter no men were requested by the Company , and none were dispatched by the Union , the cement work being finished on April 11.1 Margaret Berry , wife of the business representative , also testified as a witness . She stated that on March 27, 1952 , she received a call from Haddock for "a cement mason "; that the caller asked for no particular cement mason . She further testified that while she was in the office she never received a call for either Gilbreath or Tissue . On occasions when particular cement finishers were requested by Haddock they were supplied to the Company, at other times they sent men from the waiting list to fill the requirements of the Company I do not credit the testimony of either Berry or Mrs. Berry on the point that neither Gilbreath nor Tissue were requested by name . From the entire testimony I find that the Employer requested clearance for Gilbreath on March 19 , 1952, and for Tissue on March 27, 1952, and that the Union refused the clearance, on the ground that it had 23 members regis- tered on its waiting list of unemployed cement finishers. The above is a summary of the testimony of the principal witnesses for each of the parties. The supporting testimony of other witnesses has not been reviewed herein, although it has been considered . Such of the supporting testimony as is consistent with the findings herein has been credited. Concluding Findings It will be noted that the summary of the above evidence discloses that the testimony of all parties at the hearing was directed to an explanation of the conduct of each party under the existing hiring arrangement between the Employer and the Union. None of the parties denied that the contract between the Southern Nevada General Contractors, AGC, and Las Vegas Builders Exchange and AFL Building and Construction Trade Union, effective July 10, 1948, governed the hiring of men on the Haddock project . All the testimony-was directed to an explanation of how that agreement and procedures subsequently established worked out. It is likewise clear from an examination of section H of that contract , that Haddock and the Union agreed that each applicant for employment by Haddock would be required to obtain clearance from the appropriate building trades local before the employee would be hired. All the testimony establishes that this contract was rigidly enforced to the mutual satisfaction of 'On April 11 Alsip, VanderVeen, Die, Beeman, and Byers were laid off. Thereafter only Reddick and Cathcart continued until April 17, when they too were terminated. HADDOCK-ENGINEERS, LIMITED 1007 the Union and the Employer until Reddick's insistence upon certain named cement finishers caused trouble between the parties. It is apparent and I find that Reddick had authority from Haddock to effectively recommend the hiring and firing of the cement finishers It is also apparent that Reddick sought to hire particular cement finishers, and that he personally was unwilling to take the cement finishers who were dispatched to the job by the Union from the list of cement finishers awaiting employment at the union hall. Reddick's attempt to prefer certain cement finishers over others was the trigger mechanism that touched off the current dispute. However, whatever the motives of Reddick may have been, it does not change the fact that the Union and Haddock had set up an illegal hiring arrangement in the contract of December 18, 1950, and were effectively enforcing that contract in their hiring procedure. Upon the basis of all the testi- mony I find that: (1) The Union and Haddock on December 18, 1950, entered into a labor contract effectively adopting a previous contract between the parties dated July 10, 1948, which required that applicants for employment had to obtain clearances from the Union before Haddock would employ them, (2) pursuant to that agreement Haddock on March 19, 1952, refused to employ Sidney Gilbreath, and on March 27, 1952, refused to employ William Tissue, for the reason that they had not obtained work clearances from the Union; (3) by such action the Union caused Haddock to refuse to employ Gilbreath and Tissue as stated above; and (4) by giving effect to the terms of the aforementioned labor agreement Haddock engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and the Union engaged in unfair labor practices within the meaning of Section 8 (b) (1) (a) and 8 (b) (2) of the Act.8 V. THE REMEDY Having found that the contract of December 18, 1950, between the Respondents contains illegal provisions, it will be recommended that the Respondents cease and desist from giving effect to the entire contract,9 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 the Respondents engaged in unfair labor practices, it will be recom- mended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that: (1) From March 17, 1952, until the completion of the cement finishing work at the Haddock project, the Respondent Employer discriminated against Sidney Gilbreath in his hire, tenure, terms, and conditions of employ- ment; (2) from March 27, 1952, until the completion of the cement finishing work at the Haddock project, the Respondent Employer likewise discriminated against William C. Tissue, (3) such conduct by the Employer encouraged membership in the Respondent Union and interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act; and (4) the Respondent Union engaged in unfair labor practices by 'causing the above-named Employer to so discriminate, thereby restraining employees in the exercise of rights guaranteed by the Act. Since it appears that the cement finishing on the Haddock project has been completed, it will not be recommended that employment be offered to Gilbreath or Tissue. For the same reason, the customary recommendation that the Union notify the Employer that it has withdrawn its objections to the employment of Gilbreath or Tissue, will not be recommended Having found that the Employer and the Union were jointly responsible for the discrimi- nation in the hire and tenure of employment of Gilbreath and Tissue, the Trial Examiner will recommend that: (1) The Employer and the Union, jointly and severally, make Sidney Gilbreath and William C. Tissue whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he would normally have earned as wages during the period of discrimination against him, less his net earnings during this period, which began, in the case of Gilbreath, on March 17, 1952, and in the case of Tissue, on March 27, 1952, until April 11, 1952, the date upon which the cement finishing force of the Employer was laid off. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following. 8Carpenter and Skaer, Inc., et al., 93 NLRB 188; Phoenix Tinware Co., 100 NLRB 568; Mundet Cork Corporation, et al., 96 NLRB 1142. 9Nothing in these recommendations shall be deemed to require the Respondents to vary or abandon any substantive provision of such agreement or to prejudice the assertion by employees of any rights they may have acquired thereunder. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Operative Plasterers' and Cement Masons' International Association , AFL. Local Union 797, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By executing and enforcing the contract of December 18, 1950, the Respondents, Haddock- Engineers , Limited , and Associates IV, Joint Venturers , have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (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. By causing the Respondent Employer to discriminate against employees in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act , the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] HENRY S. MUSKETT, trading as WILSON MANUFACTURING COMPANY and PHILADELPHIA JOINT BOARD, WAIST AND DRESSMAKERS' UNION, INTERNATIONAL LADIES' GAR- MENT WORKERS' UNION, A. F. of L. Case No. 4-CA-664. May 15, 1953 DECISION AND ORDER On March 13, 1953, Trial Examiner Sidney Lindner issued his Intermediate Report in this proceeding, finding that the Respondent had engaged in certain unfair labor prac- tices in violation of Section 8 (a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent' s exceptions and its brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Chair- man Herzog and Members Murdock and Peterson]. 104 NLRB No. 129. 104 NLRB No. 129.