International Brotherhood of Teamsters, Ect.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 287 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 179 and RUDOLPH MACHAK, BUSINESS AGENT, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 179 and RAYMOND SWANSON. Case No. 13-CB-214. October 11,195.E Decision and Order On July 14, 1953, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached thereto. Thereafter the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Respondents' request for oral argument is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications and additions : 1. After the hearing the General Counsel and Respondents stipu- lated that DePrizio Construction Company performs services outside the State of Illinois in excess of $50,000 annually and also performs services, consisting principally of the construction and maintenance of railroad sidings, valued in excess of $200,000 annually for various companies and corporations each of which causes goods, in excess of $50,000 annually, to be shipped to points outside the State of Illinois. The stipulation is hereby received and made a part of the record in this proceeding. We find that DePrizio Construction Company is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Trial Examiner found, and we agree, that the Respondents violated Sections 8 (b) (1) (A) and 8 (b) (2) of the Act by causing DePrizio Construction Company to discharge Swanson because he accepted a wage less than that established as union scale. Respond- ents contend that the discharge was not intended to and did not en- courage membership in a labor organization and was not violative of the Act because Swanson was a union member at the time of his dis- charge. This contention is without merit. It is enough that the discrimination was occasioned by Swanson's failure to perform an 110 NLRB No. 40. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation of union membership, other than the payment of union dues, whether or not he was a union member.' 3. The Trial Examiner recommended that the back pay awarded Swanson be limited to that pay he would have received at the Em- ployer's Romeo project, the job from which he was discriminatorily discharged. However, we note that the parties failed to explore the back-pay issues at the hearing the record shows only that Swanson did not go to Machak to get back his job with DePrizio. Although no exceptions have been filed to this part of the Intermediate Report, we deem the evidence insufficient to justify a determination of the back-pay issues on this state of the record. Accordingly, we shall issue only a general back-pay order and leave to the compliance stage of this proceeding the resolution of these issues.2 4. We adopt the recommendation of the Trial Examiner that Respondent Machak not be held personally liable for a proportionate share of the back pay to which Swanson is entitled. No exceptions have been filed to this recommendation. 5. The Trial Examiner's first recommended cease and desist order restrains Respondents from the practice generally of requiring em- ployees to conform to union working rules. As this order would prevent the lawful, as well as the unlawful, enforcement of working rules, we shall narrow it to enjoin the Respondents from enforcing union working rules only in a manner, prohibited by the Act 3 6. The record shows that Respondent Local 179 had a contract entitled "Articles of Construction Agreement" with construction companies operating within Local 179's jurisdiction. This agreement provided, in part, that "The Business Representative shall have the privilege to visit any job to enforce the provisions of this agreement and the rules and regulations of the Union." [Emphasis supplied.] DePrizio agreed with Local 179 to abide by the terms of this agree- ment. The Trial Examiner also concluded that DePrizio agreed, in addition, to abide by and enforce Local 179's working rules. In the section of the Intermediate Report entitled "The Remedy" the Trial Examiner pointed out that the discriminatory action against Swan- son was occasioned by (1) the Respondents' practice of requiring employees working within their jurisdiction to comply with their "working rules," particularly as regards hourly wages and (2) Respondent Machak's exercise of his authority as business agent to enforce Local 179's working rules on an employer's job. For these reasons he proposed to recommend that Respondents be ordered to refrain from the practice of requiring employees of DePrizio or of 1 N. L. R. B. v Radio officers, Union of the Commercial Telegraphers Union, AFL, 347 U. S 17. 2 Compare Austin Company, 101 NLRB 1257, at 1260; Thomason Plywood Corporation, 109 NLRB 898 5 Compare Denver Building and Construction Trades Council, 90 NLRB 1760 , at 1770 ; Glazier Union Local No . 27 (Joliet Contractors Association ), 99 NLRB 1391 , at 1397. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 289 any other employer to conform to the working rules of Local 179. Apparently through inadvertence, this recommendation was omitted from the order. The Board's powers to prevent the commission of future violations, as well as to remedy past unfair labor practices, are well established 4 particularly its power to issue orders broadly restraining conduct violative of sections of the Act other than those a respondent has been found to have violated. In discussing the question of what types of conduct the Board may enjoin by a cease and desist order, the Supreme Court said in N. L. R. B. v. Express Publishing Company,5 The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indi- cated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the employer in the past. . . . We hold only that-the National Labor Relations Act does not give the Board an authority, which courts cannot rightly exercise, to enjoin violations of all the provisions of the statute merely because the violation of one has been found. To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past. [Emphasis supplied.] Relying upon this test, the Board has with judicial approval ex- tended geographically the coverage of cease and desist orders to protect employees of employers other than those a party to a proceed- ing where the respondent unions had committed similar violations against other and unrelated employers, or had a planned program to apply the same techniques to the operations of other employers, or had committed the unlawful acts during a general organizational campaign in which such acts were typical.6 However, the Board has also issued such orders in several recent cases in which there appeared * See for example American Sheet Metal Works, 106 NLRB 154; N. L. R. B. v. United Mine Workers, 195 F 2d 961 (C A 6). 6 312 U. S. 426, pp. 436-437. 6 United Mine Workers of America, District 23, et al, ( West Kentucky Coal Company), 92 NLRB 916, at 917-918, enfd. 195 F 2d 961 (C A. 6), cert. denied 344 U. S 920; Jarka Corporation of Philadelphia, 94 NLRB 320 , at 327, enfd. in this respect 198 F. 2d 618 (C. A. 3) ; United Mine Workers of America, District 31 (Cleghorn and Swaney, Inc ), 95 NLRB 546 , at 568, enfd . 198 F. 2d 389 ( C. A 4), cert. denied 344 IT S 884; United Mine Workers of America, District 2 (Mercury Mining and Construction Company), 96 NLRB 1389 , at 1391-1392, enfd . 202 F 2d 177 ( C. A. 3) ; Newspaper and Mail Deliverers' Union, 101 NLRB 589, at 591 ; United Mine Workers of America, District 2, (Fetterolf Coal Company ), 103 NLRB 1572 , at 1624, enfd. 210 F. 2d 281 ( C A. 3) ; International Typographical Union (American Newspaper Publishers Association), 104 NLRB 806, at 809. See also Consolidated Western Steel Corporation, et al., 108 NLRB 1041; C. A. Bat- son Co., 108 NLRB 1337. 338207--55-vol. 110-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be no evidence that the respondent unions had committed similar unfair labor practices against employers other than those involved in the proceeding.' In most of these cases the unlawful conduct occurred as a result of respondents' adherence to trade rules, consti- tution and bylaws, or agreements, which conduct might reasonably be expected to be continued against other persons unless enjoined. We believe that, under the Supreme Court's test in Express Pub- lishing and recent Board cases, and in conformance with, the Trial Examiner's findings, the facts in this case warrant the issuance of a geographically broad cease and desist order. The unlawful conduct found herein did not occur under unique circumstances which are unlikely to reoccur. The Trial Examiner found that the discrimina- tion herein resulted from two practices followed by the Respondents, that of requiring employees within the jurisdiction of Local 179 to conform to Local 179's working rules, particularly with respect to wages, and Business Representative Machak's practice of going on an employer's job, pursuant to the authority given him by the "Articles of Construction Agreement," to enforce Local 179's working rules. These practices do not necessarily entail a resort to methods proscribed by the Act. But as Respondents resorted to such methods in this in- stance to enforce their working rules, we think it only reasonable to anticipate their use of similar tactics for the same purpose against em- ployees of other employers who are parties to Respondents' "Articles of Construction Agreement." And this inference, we believe, meets the prerequisite established by the Court in Express Publishing for the issuance of a broad order enjoining such conduct. Moreover, to issue a cease and desist order limited to DePrizio and its employees would in no way restrain the Respondents from the commission of similar unlawful acts in the future since the record indicates that DePrizio has already completed its only construction project in Local 179's jurisdiction. Because we believe that to effectuate the purposes of the Act it is necessary here to issue a remedial order which is coextensive with the future violations which are to be reasonably anticipated, we shall issue a cease and desist order enjoining Respondents from committing this and similar violations against employees of any other employer within Local 179's jurisdiction. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National, Labor 7 Pacific Coast Marine Firemen, Oilers , Watertenders and Wipers Association, Ind, 107 NLRB 593 ; McGraw Construction Co., Inc, 107 NLRB 1043; Seabright Construction Com- pany, 108 NLRB 8; Grove Shepherd Wilson & Kruge, Inc, et al , 109 NLRB 209; Local 155, New York Knitgoods Workers Union, ILGWU, AFL, 107 NLRB 1629; Busch Kredst Jewelry Co, Inc, 108 NLRB 1214, South Texas Chapter, Associated General Contractors of America, Inc., 107 NLRB 965. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 291 Relations Board hereby orders that the Respondents, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ,of America, AFL, Local 179, its officers, representatives, agents, suc- ,cessors, and assigns, and Rudolph Machak, its business agent, his rep- resentatives and agents, shall: 1. Cease and desist from : (a) Causing or attempting to cause DePrizio Construction Com- pany or any other employer within the jurisdiction of Respondent Local 179 to discriminate against its employees in violation of Section 8 (a) (3) of the Act by requesting the discharge of any of its em- ployees as a means of enforcing the working rules of Respondent Local 179 except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or related manner causing or attempting to cause DePrizio Construction Company or any other employer within the jurisdiction of Respondent Local 179 to discriminate against its em- ployees or applicants for employment in violation of Section 8 (a) (3) of the Act except to the extent permitted by Section 8 (a) (3) ,of the Act. (c) In any other manner restraining or coercing employees or applicants for employment of DePrizio Construction Company in the exercise of the rights guaranteed in Section 7 of the Act except to the extent permitted by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify DePrizio Construction Company in writing, and fur- nish a copy of such notification to Raymond Swanson, that it has no objection to his employment. (b) Post in conspicuous places in their business offices and all places where notices to members are customarily posted copies of the notice attached hereto marked "Appendix." 8 Copies of said notices, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed in the manner indicated, be posted by the Respondent Union and the Respondent Rudolph Machak immediately upon receipt thereof and be maintained by them for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by them to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Thirteenth Region signed copies of the notice attached hereto marked "Appendix" for posting at the job sites of the employer within the geographical jurisdiction of Respondent Local 179 in places where it is convenient and customary b 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 "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order." 292 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD to post notice to employees, if the Employer will permit it. Copies. of such notice, to be furnished by the Regional Director for the Thir- teenth Region, shall be returned forthwith to the Regional Director- for posting after being duly signed in the manner indicated. (d) International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, Local 179, it officers, repre- sentatives, and agents, shall make whole Raymond Swanson for any loss of pay he may have suffered because of the discrimination against him. (e) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the Respondent Union and Respondent Rudolph Machak have taken to comply herewith. MEMBERS MURDOCK and PETERSON, dissenting in part : We concur in the majority decision except insofar as it finds that the circumstances pertaining to the unfair labor practice found herein warrant the issuance of a cease and desist order extending to employers other than DePrizio Construction Company. We agree that it is within the Board's power to issue such an order (1) where there is evidence of the commission of related viola- tions against persons not involved in a proceeding, or (2) where the, violation found was the result of the respondent union's practice, pre- sumably in effect vis-a-vis other employers and employees, of adher- ing to provisions of its bylaws, constitution, working rules , or some. widely applicable agreement, the effectuation of which would neces- sarily cause such violations. None of these conditions prevail here. Admittedly, the record amply supports the finding that Respondents, required employees working in Local 179's jurisdiction to abide by its working rules; that Respondent Machak, Local 179's business agent, customarily visited employers' jobs, as he was authorized to do by the "Articles of Construction Agreement," to enforce this agreement and Local 179's working rules, and that other construction firms in the area were parties to this agreement. But not only do these facts fail to reveal the commission of violations similar to those found here; they also fail to show either that Respondents' working rules are so• drafted as to necessarily require, or result in, unlawful conduct in their enforcement or that Respondents customarily employed such means to enforce them. The only ground upon which the broad order in question is predi- cated is the single, isolated violation of which Respondents have been found guilty. The majority finds that this violation "did not occur under unique circumstances which are unlikely to reoccur." The rec- ord fails to substantiate this conclusion. True, both DePrizio and other employers are parties to Respondents' "Articles of Construction, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 293 Agreement." But the majority completely overlooks an additional .and significant fact-DePrizio further agreed to abide by and enforce Local 179's working rules. Quite apparently, such an agreement is not also embodied in the "Articles of Construction Agreement," other- wise this additional agreement would be unnecessary. It must neces- sarily have been through this additional agreement-not found in the "Articles" to which other employers are parties-that Respondents caused DePrizio to discharge Swanson. There is no evidence that Respondents have either sought or secured this additional agreement from any other employer. And if it cannot be shown that Respond- ents have such an agreement with other employers, it can hardly be said that the unlawful enforcement of this agreement against other employers can be reasonably anticipated. Therefore, the majority's conclusion which serves as the basis for the broad order, that similar violations against other employers are to be reasonably anticipated, is without demonstrable foundation. Appendix NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 179, AND TO ALL ]EMPLOYEES AND PROSPECTIVE EM- PLOYEES OF DEPRIZIO CONSTRUCTION COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify members of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 179, and the employees of DePrizio Construc- tion Company that : WE WILL NOT cause or attempt to cause DePrizio Construction Company or any other employer within the jurisdiction of Local 179 to discriminate against its employees in violation of Section 8 (a) (3) of the Act by requesting the discharge of any of its employees as a means of enforcing the working rules of Local 179 except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner cause or attempt to cause DePrizio Construction Company or any other employer within the jurisdiction of Local 179 to discriminate against its employees or applicants for employment in violation of Section 8 (a) (3) of the Act except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment of DePrizio Construction Corn- 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany in the exercise of rights guaranteed in Section 7 of the Act except to the extent permitted by Section 8 (a) (3) of the Act. International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, Local 179, will make whole Raymond Swanson for any loss of pay suffered because of the discrimination against him. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CI-IAUFFEURS, WAREHOUSEMEN AND HELPERS or AMERICA, AFL, LOCAL 179, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) RUDOLPH MACHAK, BUSINESS AGENT, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA, AFL, LOCAL 179, Individual. Dated---------------- By------------------------------------- (Rudolph Machak) This notice must remain posted for 60 days from the date hereof,, and must not be altered, defaced, or covered by other material. Intermediate Report STATEMENT OF THE CASE Upon charges filed by Raymond Swanson, an individual, the General Counsel of the National Labor Relations Board,' by the Regional Director of the Thirteenth Region (Chicago, Illinois), issued a complaint dated November 24, 1952, against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 179, and Rudy Machak, President, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 179,2 here- inafter referred to as the Respondent Local 179, and Respondent Machak,3 alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (b) (1) (A) and 8 (b) (2) and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served upon each of the Respondents' With respect to the unfair labor practices the complaint alleged in substance that the Respondents, through its officers and agents, including Respondent Machak, on or about September 4, 1952, attempted to cause and did cause the Employer, V. N. 1 The General Counsel and his representative at the hearing are referred to as the Gen- eral Counsel. The National Labor Relations Board is referred to herein as the Board. 2 The record shows that Rudy Machak's true name is Rudolph Machak, and that he de- scribed himself at the hearing herein as the Business Agent of the Respondent Union. The undersigned corrects the caption in accordance with the proof. 3 On occasion the undersigned deviates from those designations in order to emphasize or to fit the occasion as he sees fit. * The charge refers to the Public Service Company, referred to herein as such. The com- plaint and the charge refer to the Employer as V. N. DePrizio and as V N DePrizio, d/b/a DePrizio Construction Company. He will be referred to herein as either DePrizio, the em- ployer, or DePrizio Construction Company depending upon the circumstances and the whims and caprices of the undersigned in his attempt to make the description fit the occa- sion or incident under discussion. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 295 DePrizio, d/b/a DePrizio Construction Company,5 to discriminatorily discharge and thereafter refuse to reinstate Raymond Swanson in violation of Section 8 (a) (3) of the Act, and that by causing the Employer to discharge Raymond Swanson, did en- gage in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) and8 (b) (1) (A) of the Act. On or about December 5, 1952, the Respondents filed a joint answer in which they, in substance, deny each and every allegation in the complaint , and inter alia question the jurisdiction of the Board over the operations of the Employer herein. Pursuant to notice, a hearing was held in Chicago, Illinois, on January 22 and 23, March 16, and April 6, 1953, before James Shaw, the Trial Examiner duly desig- nated to hear said case by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing all parties waived oral argument to the undersigned. The parties were advised as to their right to file proposed findings of fact and/or conclusions of law, or briefs in support of their respective positions with the undersigned. A brief was received from counsel for the Respondents on or about May 4, 1953. It has been given due consideration by the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Upon the entire record in the case the undersigned finds that the Employer herein, V. N. DePrizio, d/b/a DePrizio Construction Company, is a sole proprietorship engaged principally in the business of constructing railroad sidings, with its office located in Chicago, Illinois. The Company in the course and conduct of its business constructs and at all times material herein has constructed railroad sidings in excess of $1,000,000 annually, of which dollar value over 75 percent represents jobs, each of which exceeds $50,000 in value, performed by the Company for various companies and corporations which are engaged in interstate commerce , each of which companies and corporations causes goods valued in excess of $25,000 annually to be sold directly in interstate commerce. In the course and conduct of its business as above described, the Company annually purchases raw materials valued in excess of $1,000,000, such materials consisting principally of ties and steel rails, over 90 percent of the dollar value of such materials being purchased and obtained by the Company directly from points outside the State of Illinois. At the hearing herein counsel for the Respondents conceded that the Employer was engaged in commerce within the meaning of the Act. Upon all of the foregoing the undersigned finds that the Employer is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 179, is a labor organization within the meaning of Section 2 (6) of the Acts III. THE UNFAIR LABOR PRACTICES A. Background In order to understand the issue herein the undersigned feels that it is necessary to set forth in a little more detail than found above the nature of the Employer's business, and in particular the job with which we are concerned. As indicated above the Employer is primarily engaged in the construction of rail- road sidings . In the course and conduct of his business he requires the services of truckdrivers. These he secures through the Respondent Union, and its local nearest the job site. In the instant case the Employer was at all times material herein engaged in the construction of a railroad siding at Romeo, Illinois, for the Public Service Company. As the Trial Examiner understands the record, the job site was located on refilled swamp land and not on a road or highway. As a result trucks delivering equipment and supplies were required to run over rough ground which was covered 6 See above footnote 6 Local 179 alone Is involved in this proceeding. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a great part with rocks of all sizes and descriptions, which had been either used in making the fill or thrown upon the ground as a result of blasting operations. Before the Employer started on the actual construction of the siding he contracted with the Merchants Express Company of Joliet, Illinois, to move his equipment and supplies out to the job site. One of the truckdrivers employed by the Merchants Express Company on this job was Raymond Swanson, the Charging Party herein. As the Trial Examiner sees it, Merchants Express Company not only furnished the trucks to the Employer at so much an hour rental, but the drivers as well. Under this arrangement the truckdrivers were on the Merchants Express Company's payroll. In the course and conduct of his business the Employer employed only members of the Respondent Union as truckdrivers. It was the custom for him to secure truck- drivers through the local that had jurisdiction over the geographical area wherein the particular job was located. In the instant case it was Respondent Local 179 of Joliet, Illinois. According to the record the Employer was not a party to a written contract or agreement with either the International Union or Respondent Local 179, but for practical reasons went along with and complied with the terms and conditions of employment as set forth in what is referred to in the record as the "Articles of Con- struction Agreement." This is the standard contract or agreement that was in effect between Respondent Local 179 and various contractors in the area under its jurisdic- tion.l In addition the employer was expected to and in fact did employ only mem- bers of the Union .8 Vito N. DePrizio, president of the DePrizio Construction Company, the Employer herein, testified in substance without contradiction that though he had no written agreement with either the International Union or with Respondent Local 179, he did have an understanding with it that he would hire his employees only through its locals, abide by its working rules, and pay the wage rates set by the various locals having jurisdiction in the geographical area where his jobs were located. The record shows that it was the custom for the Employer to call the Union's offices and notify the business agent that so many truckdrivers were needed, and the type of work they were expected to do, and that it was up to the Union to assign workers to the job. In other words the hiring of employees was delegated to the Union and/or its busi- ness agent. It was in the light of the background that the events with which we are concerned herein occurred. Raymond Swanson, the Charging Party herein, testified credibly before the Trial Examiner that he was employed by the Employer under the following circumstances. In the summer of 1952 he was employed by the Motor Express Company of Bedford Park, Illinois. While so employed, that company had a contract with the Employer to haul supplies and equipment to a job site at Romeo, Illinois. Swanson drove one of the trucks assigned to that job. As the job was nearing its completion, Adrian Lopez, the Employer's superintendent, came to him and said that DePrizio had observed his work for Motor Express and would like to have him go to work for him. Swanson accepted Lopez's offer and went to work an hour after Motor Express had completed its work for the Employer. Lopez told him that he would eventually drive the winch truck, but for the time being would drive the Diamond pickup since there was then no winch truck on the job.9 The next morning the winch truck was driven onto the job site and turned over to Swanson to operate. Shortly thereafter something went wrong with the winch mechanically. At the suggestion of the Employer's regular operator, Swanson turned the truck over to him to operate, and from that time on drove one of the regular trucks except for a short interval there- after when he drove a winch truck rented by the Employer from one O. K. Donahue, of which more anon hereinafter. A few days after Swanson started to work Respond- ent Machak came out on the job and talked to him about his work. Swanson told him what he was doing and about the winch truck incident. Machak asked him what rate per hour he was getting for driving a regular truck. Swanson told him that he thought he was receiving the same rate as a winch truck operator, but that he was not 7 The geographical area allotted to Respondent Local 179 by the International Union, consisted of the counties of Grundy, Kendall, Livingston, Will and certain portions of Ford, McClain, and Woodford, all in the State of Illinois. 8 The record is not exactly clear on this point. It appears that there were some mem- bers of Local 705 of Chicago, Illinois, working on the job involved herein as well as mem- bers of Local 179 8 As the Trial Examiner understands the record, Lopez meant that since Swanson was a member of the Joliet local, that is the Respondent Local 179, he would be paid a winch driver's rate and drive it as soon as it was delivered to the job site. INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 297 quite sure because he went to work near the end of a pay period and had not had an opportunity to figure it up. Machak told him he was supposed to get the top rating, that is $2.25 per hour, a winch truck driver 's rate at the time. Machak then said to him, "all right, everything is all right as long as you are getting the top scale." Swan- son then gave him his union book and paid his dues, which was later sent to him at his home . Swanson did not see Machak again until January 23 , 1953, the date he testified at the hearing herein. Swanson further testified that he drove a regular truck for the Employer at all times material herein except for the few hours referred to above on the second day of his employment and for a short time a few days later when he drove a winch truck that the Employer rented for special purposes from one O. K. Donahue. He further testified that during his tenure of employment for DePrizio he was never cautioned or criticized about his work by any of his superiors but that on the contrary, while he was so employed, Superintendent Lopez came to him and said that the Employer was to start on a job for the Caterpillar Tractor Company after the Public Service job was completed and that he would like to have him go there and work on that job. On September 4, 1952, Swanson was discharged by Superintendent Lopez under the following circumstances : On that date Lopez came to him and said that he had "bad news," and went on to explain that Respondent Machak had just told him "to fire you," and that he was given no reasons, "just fire you." Lopez suggested to Swanson that he use the Employer's "jeep" and go to the union hall in Joliet, Illinois, and find out what was wrong. Swanson did as suggested and went to the union hall and asked for Machak, but was told by the girl in the office that Machak was not there. He made several efforts during the next few days to see Machak but was unsuccessful. He finally gave up and filed the charges against the Respondents herein at the Board's Regional Office in Chicago, Illinois, on October 2 , 1952, upon which this proceeding is predicated. Adrian Lopez, the Employer 's superintendent in charge of the Public Service job, was called as a witness by the General Counsel and testified as regards the circum- stances surrounding Swanson's discharge. According to Lopez, Swanson was hired at the request of Vito N. DePrizio, the president of the DePrizio Construction Company. He corroborated Swanson's testi- mony as regards the latter's hire and tenure of employment . He also testified that Swanson was a satisfactory worker, that he had no reason to discharge him, and that he had never received any complaints from his superiors , that is the DePrizios, as regards Swanson's work. His version of the discharge was that Respondent Machak drove up to the job site and that he went over to his car to talk to him; that there were neither preliminaries nor conversation of any kind ; and that all that Respondent Machak said was, "Fire Swanson Lay him off," and gave him no reason for his action in this regard . He admitted carrying out Respondent Machak's instruc- tions and in the main fully corroborated the testimony of Swanson as regards the events leading up to the discharge. At the onset of the hearing herein , the General Counsel called Respondent Rudolph Machak as an adverse witness under the provisions of rule 43 (b) of the Federal Rules of Procedure. Machak testified that he was the business agent of Respondent Local 179. His version of the events leading tip to and the discharge of Swanson was as follows: To begin with he corroborated the testimony of Vito N. DePrizio , the Employer's president, as regards the arrangement between the Employer and the Respondent Union. During the first part of his interrogation by the General Counsel , Machak testified that he sent Swanson out to the job, at the request of Vito N. DePrizio, to work as a winch truck driver ; that shortly thereafter , he went out to the job to check it and found that Swanson was not driving a winch truck but a dump truck. He asked Swanson the reason for this and was told by him that the Employer did not want him to drive it , but added that he was getting a winch driver 's wages, $2.25 per hour; that he then went to Superintendent Lopez and asked him why Swanson was not driving the winch truck and that Lopez told him that he had orders to keep the Employer's regular driver on the winch truck. Shortly thereafter , he called Vito N. DePrizio on the telephone and told him that he sent Swanson out to the job to drive a winch truck and demanded to know why he was driving a dump truck . DePrizo told him that Swanson did not want to drive it and that for this reason he was put on the dump truck ; and that DePrizio then told him that he was dissatisfied with Swan- son's work because he was careless with the equipment and abused the truck by driv- ing it over rocks and requested that he be replaced. Machak agreed and shortly there- after did so. Machak specifically denied that he told the Employer that he wanted Swanson taken off the job and fired. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after Machak denied that he had requested Swanson's discharge in his testi- mony before the Trial Examiner, he was queried by the General Counsel as regards a conversation that he had had on or about October 13, 1952, with a Mr. Jacobson, a field examiner for the Board. Machak admitted that Jacobson had interviewed him as regards the circumstances surrounding Swanson's discharge. He also admitted that during the course of the conversation that ensued, Jacobson made rough notes on a piece of paper as regards the matters that were under discussion; that after the interview was over Jacobson gave him the notes to read which he did and that he then initialed the document. He further testified that when he placed his initials on the sheet of paper containing the notes, subscribed thereon by Jacobson during the course of the interview, he was initialing it because he believed it was true. The notes in question are set forth below in their entirety.'° 10-13-52 Swanson was sent out to take job of winch driver, which pays $2.25. Machek [sic] checked with Swanson as to whether he was getting top rate as per winch truck driver under the contract. Swanson got job-driving dump truck. He lied to Machek [sic] and told him he was actually getting top when he was only getting $2.05. When Machek [sic] heard that Swanson lied he con- tacted DePrizio Co. and asked for removal. Contract covers local jurisdiction. Company coming from anywhere, hires through office and operates under contract. Article X says B. A. may enforce any provision of agreement. Agreement approved W. S. B. Swanson's taking a lower rate for a job could well jeopardize the Union's wage structure. The winch operator on the DePrizio's and got rates straight- ened. R. M. Counsel for the Respondents objected to the admission of the foregoing statement in evidence. The Trial Examiner overruled his objection and admitted the docu- ment, not as to the truth of the statements contained therein as a predicate to impeaching the witness' testimony, but on an entirely different theory. As the Trial Examiner understood the General Counsel at the time he offered the document, it was on the theory that Machak having admitted that there had been a prior con- versation with Field Examiner Jacobson and that the latter made the notes referred to above and that he then read them and immediately thereafter, initialed the state- ment as to their correctness because he understood at the time that the contents of the memorandum or statements were true, then under such circumstances the document was admissible not because of its contents or form but upon the witness' own testimony as regards the truth of its contents at the hearing herein. The Trial Examiner agreed with the theory of the General Counsel then, and at this time reaffirms his ruling in this regard. The Trial Examiner's comments at the time he received the document in evidence are set forth below, since they well state his posi- tion in this regard. Mr. FRIEDMAN: Mr. Examiner, we submit that the witness has sufficiently identified this document as having been a correct reflection of what he told Mr. Jacobson at the time he initialed this after satisfying himself that it was correct. Trial Examiner SHAW: Of course, you understand the Board's position on affidavits used for impeachment. I think the Board states its position, I think, in the Markell case that is the sole purpose of an affidavit. This is a blank statement. It is not under oath. Mr. FRIEDMAN: Mr. Examiner, had Mr. Machak made a statement to some other party in this nature, I would consider it an admission against interest and it would certainly have been admissible. Trial Examiner SHAW: I understand that, but I want it distinctly understood that any findings I make as regard to any witness' testimony is based on the record as a whole. Mr. FRIEDMAN: I understand that, sir. Trial Examiner SHAW: I am going to admit it, but I want you to understand that he had identified that and he has stated at the time the statement was made it was the truth as he understood it. That is the testimony on the record. My admitting it into the record is no indication of its probative value at all, because I can't do that. It all depends on the entire record. 10 See General Counsel's Exhibit No. 3. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 299 As the Trial Examiner sees it the Respondents' position is that they were not 'responsible for Swanson's discharge but that the Employer delegated to Respondent :Machak the authority to go to the job site and discharge him for cause; and that the Employer told Respondent Machak in a telephone conversation that Swanson was abusing the equipment assigned him at the job site by running over rocks and stones and that though the Employer's President Vito N. DePrizio had personally -reprimanded Swanson for his conduct he had nevertheless continued to handle the equipment in such a reckless and unworkmanlike manner that it was necessary to take such action. In other words, Respondent Machak acted merely as a conduit, so to speak, to carry out the wishes and desires of the Employer. Before proceeding further as regards the position of the Respondents the writer feels compelled to discuss and dispose of its theory as regards the resolution of the ,credibility of the witnesses, Swanson and Lopez. The undersigned does this at this time because he feels that it will assist all parties in their understanding of his reason- ing in this regard not only as to Swanson and Lopez, but as to his ultimate disposal of all credibility questions as regards witnesses in general. In its brief the Respondents advance an unusual theory in support of its general position that Swanson was discharged for cause, and that is that since Swanson lied to Respondent Machak when he told him that he was receiving a winch driver's wages when as a matter of fact he was not, then he was in fact a perjurer and no credence should be given his testimony as regards any or all of the issues involved herein. The Trial Examiner rejects this contention of the Respondents. He does not subscribe to the philosophy that a sentence or a word here and there taken ,out of the context of a witness' testimony is sufficient to label him a perjurer when ,it is placed alongside of other testimony that shows a contrary situation. It is the record as a whole that is to be dealt with; not excerpts therefrom that tend to create a doubt as to a witness' credibility. Nor does the writer accept the proposition that a line or two out of the context of a witness' testimony is legally sufficient to predicate a finding of fact thereon. As stated above, he does not subscribe to such a theory for the simple reason that he feels that it not only does violence to the -accepted rules of evidence but likewise to the reasoning of the Supreme Court in ,the Universal Camera case." The answer to the Respondents' position is the record .itself when considered as a whole. Machak's account of the events leading up to Swanson's discharge has been partially set forth above. The gist of the remainder of his testimony is discussed ,and disposed of below. After Machak had the conversation referred to above concerning Swanson's ,duties and rate per hour he returned to his office and called Vito N. DePrizio on the phone and inquired as to Swanson's status and particularly as regards his rate per hour. It was during the course of this conversation that DePrizio requested Machak to replace Swanson. Machak's concern over the hourly rate paid Swanson stemmed from the fact that since DePrizio was a Chicago contractor he was re- -quired by the so-called agreement to pay the top rate in the areas where the job was located. Since the job at Romeo, Illinois, was outside the Chicago area and under the jurisdiction of Respondent Local 179, then any employees hired in that .area were entitled to the top rate, in this case $2.25 per hour. Since Swanson was actually working on a dump truck, which under the terms of the Respondent Local's working rules paid only $2.05 per hour, when in reality he was supposed to have a winch driver's job and draw pay accordingly, then the question became important to Respondent Local 179, because it was in effect a violation of its working rules, and injurious to the wage structure then in effect in the area under its jurisdiction. Particularly so since the Employer's regular truckdriver from Chicago, whom Machak discovered was actually driving the winch truck, was being paid only $2.05 per hour. It was for these reasons that he called DePrizio and demanded an explanation. As indicated above Machak contends that Swanson lied to him about the rate per hour he was receiving. The record here does not substantiate this contention. As indicated above Swanson told Machak that he was not sure just what his rate was because at the time he had not yet drawn a full paycheck and was unable to and in fact had not computed his hourly rate in terms of hours and dollars from the gross amount actually paid him as evidenced on the face of the check. Such a statement cannot be construed to mean that Swanson told Machak he was getting $2.25 per hour when in fact he was only getting $2.05 as counsel for the Respondent contends in his attack on Swanson's credibility. In the considered opinion of the Trial Exam- iner Swanson's statement to Machak amounted to nothing more than what it pur- ports to Be, that is, that he was not sure just what his rate was. For this, as well as n See Universal Camera Corp . v. N. L. R. B., 340,U. S. 474. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the reasons set forth and discussed above, the writer rejects the Respondents' contention that Swanson's testimony in this regard is sufficient to label him a perjurer, and thus compel a finding that all of his testimony should be rejected . The writer finds that this contention of the Respondents as regards the credibility of Swanson is without merit. Vito N. DePrizio , president of the DePrizio Construction Company, the employer herein, was called as a witness by the Respondents and testified concerning his rela- tions with them and the events leading up to the discharge of Swanson. According to DePrizio , he received a complaint from the Motor Express Company that its equipment was being abused at the job site. He told Lopez about the com- plaint and requested that he ask the truckdrivers to be careful in handling its trucks and equipment. Shortly thereafter Motor Express completed its part of the job and he requested Lopez to hire one of the Motor Express drivers to work for him. Lopez told him that Swanson was "o.k." and he told him to hire him. About a week later he went out to the job site and caught Swanson driving the Diamond T truck over rocks and big stones . He stopped him and "raised particular hell" about it and told him to use the laborers to clean out the rocks in front of the truck as it moved over the area. He then went to Lopez and reprimanded him for permitting the truck- drivers to abuse the trucks in such a manner . Later on he talked to Lopez about the equipment and especially as regards the way Swanson handled his truck. He sug- gested to Lopez that they make a change . Lopez agreed that this was the thing to do, and he told Lopez that he would go by the union hall and have a new driver sent out to replace Swanson . Shortly thereafter, however, Machak himself called him on the telephone and complained about the rate per hour that he was paying Swanson. In the course of their conversation he told Machak about Swanson's abuse of the truck and asked that Le be replaced , which Machak agreed to do. On the other hand Superintendent Lopez testified that DePrizio had never com- plained or criticized Swanson's work or the handling of the equipment to him while he worked under his supervision. When DePrizio's testimony in this regard is considered in the light of that of Swanson and Lopez, whom the Trial Examiner has found above to have been forth- right and credible witnesses , the writer is convinced and finds that he did not give an accurate account of the circumstances leading up to Machak's discharge of Swanson. Certain other factors have persuaded the writer in reaching this conclusion. For example, it is unbelievable that the owner of a business would stand by and witness with his own eyes an employee deliberately abuse his equipment without either (1) summarily discharging him, or (2) instructing the superintendent on the job to do so forthwith. The Trial Examiner simply does not believe DePrizio 's testimony con- cerning the events leading up to Swanson 's discharge . Again, it is also inconceivable that DePrizio, as the owner of the business,12 would delegate to the business agent of a union the job of firing an unsatisfactory employee who according to his own testi- mony had engaged in conduct (literally under his nose ) that was just cause for dis- charge. Nor can the writer understand why he would delegate to a "stranger" to the business the authority to carry out a purely managerial prerogative and at one and the same time bypass his superintendent on the job, who surely was invested with the authority to hire and fire, particularly in view of the fact that there was no con- tractual relationship of any kind between DePrizio and the Respondents herein. In their brief the Respondents also attack Swanson's credibility on the grounds that he lied as regards the Donahue truck incident. DePrizio testified that it was his winch truck that was used on the job, and that he "had no knowledge" that a truck owned by the O. K. Donahue Company was used. In view of this testimony of DePrizio the Trial Examiner finds no reason to discredit Swanson's testimony that such a truck was used for a short period by the Employer on the job involved herein, particularly since DePrizio testified that he only got out to the job once or twice a week. Moreover, Robert DePrizio, his son, testified that he was at the job site 3 or 4 times a week but was not queried at all about the Donahue truck . This fact further convinces the writer that Swanson's testimony in this regard raises no plausible doubt as regards his credibility as a witness. Finally, there yet remains one phase of Vito N. DePrizio 's testimony that particu- larly impressed the Trial Examiner and that was his account of the events leading up to the hiring of Swanson by Lopez. His testimony in this regard follows below- 12 Robert DePrizio testified that the DePrizio Construction Company was unincorporated and, from what the Trial Examiner gleans from his testimony , his father, Vito N DePrizio, was the real owner of the business. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 30,1 Q. Well, Mr. DePrizio, how was Mr. Swanson hired by your company? A. How was he hired? Q. What were the circumstances? A. Well, we needed a driver just right after he was through with Motor Express and we didn't want to call the union up and we thought we had a man there coming off of the Motor Express job and he was capable enough to handle our trucks . I told Lopez to suit himself, if he was all right to put him to work. Q. Did you have any conversations with Mr. Machak in reference to this switch Swanson was making from the Motor Express Company to your com- pany? A. I don't remember that. Q. You probably did? Mr. CARMELL: Just a minute , I object to that. The WITNESS : I don't remember that. Trial Examiner SHAW: Overruled , answer the question. The WITNESS : I don't remember that. Q. (By Mr. Vox ROHR) Do you know whether Mr . Lopez had a conversation with Mr. Machak in reference to Swanson 's being hired by your company from Motor Express? A. I don't remember that either . I don't think that Lopez had any conversa- tion in reference to hiring Swanson. Lopez told me that he thought he was a pretty good man and he said that it would probably save time to call the hall and we needed a man, so, he said , "I think we should give him a trial on our equipment." Q. Did Mr. Lopez hire Mr. Swanson then? A. Through my instructions , yes. I told him to go ahead. Q. You wouldn't have hired Mr. Swanson unless he belonged to the union, would you? A. Of course not. Q. So somebody must have cleared it with the union before Mr. Swanson was hired to determine whether or not he was a union man , is that correct? Either you or Mr. Lopez? A. Well, I know that all of the time because we had to have a union driver on this equipment that I knew previous to that that any project in that locality there, we had to go through the union and get a union truck driver. When DePrizio's testimony is considered in the light of that of Swanson and Lopez the Trial Examiner is convinced that Swanson was hired by DePrizio directly and was not cleared through the Union, and that the circumstances surrounding his hiring were unknown to the Respondents until Respondent Machak went out to the job and queried Swanson in this regard . Since the circumstances concerning this incident have been discussed and disposed of above the writer will not reiterate them here. There yet remains to be disposed of the Respondents ' position as regards the wit- ness, Lopez. At the hearing and in his brief, counsel for the Respondents in substance takes the position that Lopez testified falsely in this proceeding , because of his ani- mosity towards the Employer . Their contention in this regard was first brought to the undersigned's attention at the hearing on March 16 , 1953, in an on-the-record discussion as regards the difficulty the Respondents were encountering in securing the testimony of Vito N. DePrizio , the Employer's president. As the record shows, DePrizio was ill when the hearing first convened in January 1953 and it was ad- journed, at the request of counsel for the Respondents , to await his recovery so that he could appear and testify in this proceeding . On March 16, 1953, the hearing re- convened in Chicago , Illinois, for that purpose . DePrizio did not appear and this led to a discussion on the record in this regard . In the course of the discussion the Trial Examiner in an effort to expedite the proceedings suggested to counsel for the Respondents that he make an offer of proof as to what DePrizio would testify to if he were present at the hearing . The writer's reasoning in this regard was that with such a statement on the record, then there might be a possibility that the parties could arrive at a stipulation of some kind and thus hasten the close of the hearing. The offer of proof, which the Trial Examiner rejects, and the colloquy that followed between the writer and counsel for the Respondents , follows below. Trial Examiner SHAW: I will tell you what I am going to do. I am going to let you make an offer of proof as to what DePrizio would testify to into the record, and then I will make a further statement after you have made your offer of proof You can make your offer of proof. Mr CARMELL : Is this in lieu of the testimony? Trial Examiner SHAW: I will have another statement to make after you make your offer of proof Go ahead and make it so we will have it on the record. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. CARMELL: I offer to prove that if Mr. DePrizio, Senior, was here and' testified, he had not-been able to come because of ill health, and under oath, he- would have testified as follows: That he has observed Swanson, the complainant in this case, handling his, equipment in an unsatisfactory manner by running it over rough roads; that he told Lopez, his foreman, or superintendent-I forget which his designation was- to tell Swanson to be more careful in handling, the way he handles the equip- ment. Lopez told DePrizio that he would tell him that. Sometime later he continued to observe that Swanson had not changed his manner in any way with handling. the equipment, and that he did not take care of the equipment and was running it over, was driving it a bit too rough over the rocks, and he told him to dis- charge, told Lopez to discharge Swanson for that reason; that Lopez did dis- charge Swanson for that reason and at the request of DePrizio. I will also prove by this same witness that if he was here that he would testify that Mr. Lopez was discharged because of drunkenness and not taking care of- his business as a superintendent; that it was for that reason that Lopez wa& testifying in the manner he did in this case. Trial Examiner SHAW: The date of Lopez's discharge was? Mr. CARMELL: I think it is in the record. I, offhand, do not know. Trial Examiner SHAW: Does that conclude your offer of proof? Mr. CARMELL: That concludes my offer of proof. Trial Examiner SHAW: I take it from your offer of proof that you would con- tend that Lopez gave false testimony here. Mr. CARMELL: Yes. Trial Examiner SHAW: Perjured. Mr. CARMELL: Call it what you will. He was not telling the truth. Trial Examiner SHAW: And the reason he perjured himself is because at the time he testified he was discharged. Mr. CARMELL: He was discharged, yes, sir. Trial Examiner SHAW: What is Lopez doing now? Mr. CARMELL: He is back to work there now. Trial Examiner SHAW: For whom? Mr. CARMELL: For DePrizio. He came back on a probationary basis that he will stay sober and so forth. He went back some weeks after the hearing- In his brief, counsel for the Respondents makes this further comment as regards Lopez: If DePrizio, Sr., is to be believed, and his testimony is uncontradicted, and he has no interest in the case, then the charging party was needlessly driving the truck over rough terrain against and over boulders and causing damage. His son testified that it was perfectly possible to drive the truck and avoid the rocks and boulders that would cause damage to it. Not only was the charging party discharged. Lopez himself was fired because he was drinking on the job and because he was not sufficiently supervising the employees to protect the trucks they were driving, which contradicted Lopez' direct testimony and was a reason for his testimony in this case. [Emphasis supplied.] The writer has carefully considered the entire record and concludes and finds that there is no substantial evidence therein to support the contention of the Respondent's counsel as regards the witness, Lopez. Lopez impressed the writer as an honest and forthright witness, consequently, he credits his testimony herein in its entirety. In passing, the Trial Examiner desires to state that in his considered opinion, the contention of counsel for the Respondents that Lopez testified falsely herein in order to injure his then former Employer, DePrizio Construction Company, is ridiculous on its face, primarily because the Employer is not a party to this pro- ceeding. This being so then Lopez' testimony by no stretch of the imagination could be adverse to any legitimate interest of the Employer insofar as the issues herein are concerned. As the Trial Examiner sees it the only conceivable injury that might enure to the Employer by virtue of Lopez' testimony, would be in his relations with the very Respondents who are involved in this proceeding, who in retaliation might possibly deny him access to their facilities and prestige in the- labor market. Quite frankly, counsel's remark on the record and in his brief compels the writer to arrive at such a conclusion. Again, if injury was contemplated by Lopez at the time he testified before the Trial Examiner, then why would the DePrizio Construction Company have rehired` him after he had testified herein? That the Employer did so and that Lopez was- still working for him at the time the hearing closed on April 6, 1953, is well estab- INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 303 'lished in the record, and in the considered opinion of the Trial Examiner belies the contention of the Respondents in this regard. B. Conclusions From all of the foregoing the Trial Examiner is convinced and he finds that Ray- mond Swanson was discharged by the Employer, DiPrizio Construction Company, be- cause he violated one of the working rules of Respondent Local 179, that is, he accepted employment at a lower rate per hour than the established scale in the geographical area within the jurisdiction of Respondent Local 179. The Trial Examiner further finds that the circumstances leading up to his discharge were as follows: Respondent Machak, upon a routine check of the job being per- formed by the Employer for the Public Service Company near Romeo, Illinois, learned for the first time that Raymond Swanson, the Charging Party herein, was working on the job as a dump truck driver, at the hourly rate of $2.05 per hour when according to the working rules of Respondent Local 179 he should be work- ing as a winch truck driver at the rate of $2.25 per hour, which under the Union's rules drivers from Local 179 were entitled to be paid. That is, members of Respond- ent Local 179 were entitled to top scale when a contractor from another jurisdiction moved on to a job that geographically was within its jurisdiction. That Respondent Machak upon receiving the above information from Swanson then called Vito N. DePrizio, the Employer herein, and insisted that he tell him what Swanson's duties were, his rate per hour, and the circumstances surrounding his employment; that when DePrizo told Respondent Machak that Swanson was driving a dump truck and was being paid at the rate of $2.05 per hour, the scale for that type of work, Machak demanded that he be replaced; and that DePrizio acquiesced to Machak's demands and permitted him to go upon the job and'summarily discharged Raymond Swanson. The writer further finds that the compelling factor behind Respondent Machak's action in this regard was that Swanson, by taking a lower rate per hour than mem- bers of Respondent Local 179 were entitled to under the Union's jurisdictional laws, jeopardized the entire wage structure then in effect in Respondent Local 179's juris- dictional area. As the Trial Examiner sees it the record itself when considered as a whole not only justifies the above, but the testimony of the Respondent Machak himself com- pels that such findings be made as regards the issues herein. The writer further finds that at all times material herein there existed an under- standing or an agreement between the DePrizio Construction Company, the Em- ployer, and the Respondents to the effect inter alia that only members of the Respondent Union in good standing would be employed by the Employer on its jobs and that when in the geographical jurisdiction of Respondent Union's Local 179, said Employer would operate under, abide by, and enforce the working condi- tions amongst its employees in accordance with the working rules of said local. The record clearly shows that Respondent Machak's conduct was predicated on his authority as business agent 13 to enforce the working rules of the Respondents on the job. By DePrizio's silence, acquiescence, and ratifications and by Lopez' obedi- ence to Respondent Machak's demands, the Employer herein permitted the Respond- ents to usurp his normal rights to hire and discharge employees. The mere fact that the Employer is not named as a party to this proceeding is of no importance, for the simple reason that it is enough if the facts show, and they do to a certainty here, that Swanson was discharged because he chose to refrain from or to disregard the Respondents' working rules. The vice of the Respondents' conduct here is that they did successfully cause the DePrizio Construction Company to discharge Swanson under circumstances which if it had independently engaged in such conduct would have clearly been violative of Section 8 (a) (3) of the Act. As the Trial Examiner sees it, it is a violation of the Act if a union causes or "induces an employer to violate Section 8 (a) (3) of the Act." As the writer sees it the Employer's acquiescence in and the actual carrying out of Respondent Machak's demands that Swanson be fired forthwith, and by its later ratification of Superintendent Lopez' action in this regard, clearly strengthened the Respondents' control over its membership and their relationship with the Employer.14 18 See article X of the "Articles of Construction Agreement." 14 See Local 13, International Brotherhood of Boilermakers , Iron Ship Builders and Helpers of America, AFL, and John Kennedy, Its Business Agent ( The Babcock (f Wilcox Co ), 105 NLRB 339 and cases cited therein. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By the conduct described above the Trial Examiner finds that the Respondents independently violated Section 8 (b) (2) of the Act. The writer also finds that the Respondents, by demanding that the Employer discharge Swanson, likewise violated Section 8 (b) (1) (A) of the Act. This section of the Act makes it an unfair labor practice to restrain or coerce any employee in the exercise of his rights under Section 7 of the Act which includes the right to refrain from any or all concerted activity. Although the Trial Examiner has found above that there was no written agree- ment between the Respondents and the Employer, DePrizio Construction Company, he has found, and in fact it is admitted by the Respondents, that there was an arrange- ment or understanding between them to the effect that only members of the Respondent Union would be hired on the job, and that the working rules of Local 179, not only would prevail, but that the business,agent of that Local, Respondent Machak in this case, could go upon the job site and enforce said rules while the Employer was engaged in construction projects within the geographical area of Local 179. Under such circumstances Swanson was not legally required to even belong to the Union, or to maintain membership therein, let alone conform to its working rules, while working for DePrizio or any other employer for that matter. Hence, when the Respondents caused Raymond Swanson to be discharged on September 4, 1952, in either an effort to compel him to conform to Local 179's working rules or to discipline him for not conforming thereto, it restrained and coerced him with respect to his right as an individual to refrain from this form of concerted activity in violation of Section 8 (b) (1) (A) of the Act. Clearly such conduct constitutes restraint and coercion within the meaning of the Act. Here the conduct of the Respondents caused Swanson to be discharged, to lose his job, and is economic coercion at its worst. In such an atmosphere workers, that is working men, are not free to engage in or refrain from engaging in "concerted activities." Such power should not be exercised by either unions or employers. To permit unrestrained control over the means of livelihood of workers would in the considered opinion of the writer defeat the purposes of the Act as stated in its preamble both before and after its amendment. In view of all of the foregoing the writer concludes and finds that the Respondents herein caused the Employer, DePrizio Construction Company, to discriminate in regard to the hire and tenure of employment of Raymond Swanson, in violation of Section 8 (a) (3) of the Act and thereby the Respondents violated Section 8 (b) (2) and8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operation of the Employer, DePrizio Construction Company, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor prac- tices, the Trial Examiner will recommend that each of them cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Employer, DePrizio Construction Company, has dis- criminated in regard to hire and tenure of employment of Raymond Swanson at the request and demand of the Respondent Union and Respondent Rudy Machak, its president and business agent, thus causing the Employer, DePrizio Construction Company, to so discriminate against Raymond Swanson. The discriminatory action taken by the Respondents in respect to Raymond Swanson was based upon their "working rules" which required employees to work under and in compliance with said terms particularly as regards their hourly rate while employed in the geographical jurisdiction of Respondent Union Local 179, and as interpreted by Respondent Rudy Machak in his capacity of business agent of Respondent Union Local 179. Since the vice of the discriminatory action taken in regard to Swanson arose from these practices, and in particular the practice of the business agent to go upon an employer's job and police the job and enforce its "working rules," it will be recommended that the Respondents cease and desist from the practice of requiring employees to conform to or to work in accordance with the terms and conditions of employment (and their interpretation by the Respondents) as set forth in said "working rules," while em- ployed by the Employer herein, or any other employer. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 305 The problem of devising a remedy for the discriminatory action of the Respond- ents herein in their demanding the discharge of Raymond Swanson by the Employer, DePrizio Construction Company, on its Public Service Company job at Romeo, Illi- nois, presents considerable difficulty, since that job at this late date has in all proba- bility been completed. Again the very nature of the business, that employers with whom the Respondents have or may have lawful agreements are engaged in, makes any recommendation for back pay extremely difficult for the simple reason that the jobs they have are of necessity of indefinite duration. The record indicates that members of the Union might work for any number of employers in the course of a calendar year at numerous locations throughout the territory under Respondent Union Local 179's geographical jurisdiction. In general, the record shows that as jobs are commenced employees are placed on the payrolls of these employers and dropped therefrom as soon as the jobs are completed. Under such circumstances, and upon the entire record in the case, the Trial Examiner will recommend that the Respondents notify the Employer herein that they have no objections to its employing Raymond Swanson on any job that it currently may have in progress at the time this Intermediate Report is issued. It will be recom- mended that the Respondents notify any and all employers with whom it has contrac- tual arrangements, written or oral, understandings, or agreements, lawful or unlawful (within the meaning of the Act), that they have no objection to their employing Raymond Swanson in any capacity either within or without the crafts and/or classification of employees over which Respondent Union Local 179 claims jurisdic- tion, historically or otherwise. As to back pay, the writer will recommend that Respondent Union Local 179, make Raymond Swanson whole for any loss of pay he may have suffered as a result of its discrimination against him by causing the Employer, DePrizio Construction Company, to discharge him on the Public Service job near Romeo, Illinois, on September 4, 1952, to the date of that job's completion.15 The period after the completion of the Public Service job, and as the Trial Examiner interprets the record it had been at the time of the hearing herein, presents a most difficult situation not only of the nature of the Employer's business, but also because of the limitations imposed by the geographical jurisdiction of Respondent Local 179. Consequently the writer feels that to recommend an award for back pay for this period would be in the nature of a penalty, since the record contains no evidence that the Employer customarily has contracts within the geographical jurisdiction of Respondent Local 179. As a matter of fact what little evidence there is in the record in this regard is to the contrary. Again the record is silent as to whether Swanson sought employment at his trade within the geographical jurisdiction of Respondent Local 179, after he was discharged by the Employer at the demand and behest of Respondent Machak. In such a state of the record the Trial Examiner is of the opinion that no recommendation for back pay for the period after the completion of the Employer's contract with Public Service Company is warranted. The Trial Examiner takes this position because he feels that to recommend back pay for this period would also be in the nature of a penalty, and not effectuate the policies of the Act, particularly since any power the Board has to recommend back pay for em- ployees discriminated against by either employers or labor organizations stems from its inherent power to "effectuate" the policies of the Act. Moreover, since Swanson was a member in good standing of Respondent Union Local 179 at the times material herein the writer is convinced that he should have made an effort to secure employ- ment with other employers with whom Local 179 had contractual relations after the Employer completed the Public Service Company job, and the writer is convinced that his failure to resort to Local 179's facilities in this regard is a further reason to recommend that an award of back pay be limited to the period that the Employer was engaged in its construction work for Public Service Company. Now as to the liability of Respondent Rudolph Machak, Local 179's business agent and/or president, and the question of personal liability on his part for a proportionate share of the recommended back-pay award to Swanson. As the writer interprets the Act it does not mean that the business agent of a union can be held jointly and severally liable with the union for liability for back pay. As the writer sees it they are not separate entities under the Act, but one and the same, the business agent being nothing more than the voice of the union, or legalistically speaking its "creature" inso- far as financial liability is concerned. Though they might be civilly liable for a tort under certain circumstances, such analogy is neither pertinent nor controlling here. True, the record clearly shows that Respondent Machak was responsible for the dis- 15 Crossett Lumber Company, 8 NLRB 440 See also F TV Woolworth Company, 90 NLRB 289 338207--55-vol. 110-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge of Swanson but the Act, as the Trial Examiner sees it, does not authorize the Board to direct the agent of a labor organization to reimburse an employee for back pay lost as a result of discriminatory action against him. Section 10 (c) provides that in the Board's remedial order, it may require back pay of an "employer" or "labor organization," no reference is made to an agent of a labor organization , even though Section 8 (b) specifically prohibits the commission of unfair labor practices by labor organizations and their agents. In view of the specific inhibitions imposed upon a "labor organization" and its "agents" by Section 8 (b), and the definition of a labor organization in Section 2 (5) of the Act, it may be assumed that Congress intended the term "labor organization" as used in Section 10 (c) to include its "agents." The coupling of the words "labor organization" and "agents" in Section 8 (b) by specific use of the terms and the omission of "agents" from the relevant provision of Section 10 (c) further evidences a statutory design to limit the obligation for back pay to employers and unions, and not their agents. Consequently, the writer will not recom- mend that Respondent Machak reimburse Swanson for wage losses resulting from the discrimination against him. Upon the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of V. N. DePrizio, d/b/a DePrizio Construction Company, con- stitute trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, AFL, Local 179, is a labor organization within the meaning of Sec- tion 2 (5) of the Act, and Rudolph Machak is its business agent.16 3. By causing the Employer, V. N. DePrizio, d/b/a DePrizio Construction Com- pany, to discriminate in regard to the hire and tenure of employment of Raymond Swanson, in violation of Section 8 (a) (3) of the Act, the Respondent Union and Respondent Rudolph Machak, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Union and Respondent Rudolph Machak have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 10 Though the complaint refers to Machak as "President" of Local 179, he testified at the hearing herein that he was its "Business Agent," and the Trial Examiner so finds. PLAYWOOD PLASTICS CO., INC. and UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA , AFL. Case No. 6-CA-809. October 11,195.E Decision and Order On June 28, 1954, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed a brief in support of the Intermediate Report and certain exceptions to subordinate findings therein. The Union and General Counsel filed no exceptions or briefs. 110 NLRB No. 39.