Insulation Contractors of Southern California, Inc.

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. American Federation of Grain Millers , Local 61, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees, exclusive of office, clerical, and supervisory employees, as defined in the Act, constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 3. American Federation of Grain Millers, Local 61, AFL, at all times material herein has been and now is the exclusive representative of all employees of the Respondent in the unit aforesaid for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By unilaterally making wage increases and by refusing to bargain with the above-named Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such conduct, by interrogation and threats addressed to employees, and by discharging its employees on October 30, 1953, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. 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.] INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, AND PLANT INSULATION COMPANY and MARIE BEARDON LOCAL 5 OF THE INTERNATIONAL ASSOCIATION OF HEAT AND FROST IN- SULATORS AND ASBESTOS WORKERS, AFL, AND ITS AGENT ALBERT E. HUTCHINSON and MAxIE BEARDON. Cases Nos. 21-CA-1729 and 21-CB-195. October 29,195 . Decision and Order On March 10, 1954, Trial Examiner Wallace E. Royster issued an Intermediate Report in the above-entitled proceeding, finding that the Respondent Company had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent Associations and the Respondent Union had not engaged in unfair labor practices and recommended that the complaint be dismissed as to these Respondents. Thereafter, the Respondent Company and the General Counsel filed exceptions to the Intermediate Report, and briefs in support thereof. The Board has reviewed the rulings made by the Trial Examiner 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 briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. 110 NLRB No. 105. INSULATION CONTRACTORS, ETC. 639 The Respondent Company, Plant Insulation Company, is a Cali- fornia corporation engaged in the distribution and installation of insulating materials. It is qualified to do business in Arizona, Nevada,. and New Mexico. During 1953, the Respondent Company did a total business in excess of $500,000, of which more than $25,000 represented shipments of goods and services performed outside the State of California. The Respondent Association, Insulation Contractors of Southern California, is an unincorporated voluntary association of employers, including the Respondent Company, engaged in insulation work in the Los Angeles area, and exists for the purpose of representing its members in collective bargaining with labor organizations. During 1953, the members of the Respondent Association shipped goods and performed services outside the State of California valued in excess of $125,000. For a number of years the Respondent Association and a predecessor organization have negotiated a single collective-bargaining agreement with the Respondent Union for all association members, who have thereby manifested a desire to be bound in their labor relations by joint rather than by individual action. By this joint action, the As- sociation and its members have constituted themselves a single em- ployer within the meaning of the Act.' Although the Board has recently announced new minimum require- ments for the assertion of its jurisdiction, we will adhere to our past practice of considering all association members who participate in multiemployer bargaining as a single employer for jurisdictional purposes. Accordingly, under the new standards, in determining whether to assert jurisdiction, the Board will continue to consider the totality of the operations of the association members. As the members in the aggregate ship goods and do business outside the State of Cali- fornia valued in excess of $50,000, we find that it will effectuate the policies of the Act to assert jurisdiction herein.2 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent Company, Plant Insulation Company, Los Angeles, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Local 5 of the International As- sociation of Beat and Frost Insulators and Asbestos Workers, AFL, 1Mundet Cork Corporation and Insulation Contractors of Southern California , Inc, 96 NLRB 1142 at 1169, Vaughn Bowen, at al, 93 NLRB 1147 at 1150; Oertel Brewing Com- pany and Louisville Br ewers Assomattion, 93 NLRB 530 at 537. 2 Jonesbor a Grain Drying Cooperatn,e, 110 NLRB 481. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or in any other labor organization of its employees, by discriminat- ing against employees in regard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act.3 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Maxie Beardon and Claude Van Vlack immediate and lull reinstatment to their former or substantially equivalent positions as insulation mechanics without prejudice to seniority or other rights and privileges previously enjoyed. (b) Make whole Maxie Beardon and Claude Van Vlack for any loss of pay they may have suffered by reason of the discrimination against them, in the manner provided in the section of the Interme- diate Report entitled "The Remedy." (c) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (d) Post at its place of business in Los Angeles, California, copies of the notice attached hereto and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by an authorized represen- tative of the Respondent Company be posted by it immediately upon receipt thereof and maintained by it for a period of sixty (60) con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply therewith. 3 N L R B. v Entwistle Manufacturing CO, 120 F 2d 532 (C A 4) 4In the event that this Order is enforced by a decree of the 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." INSULATION CONTRACTORS, ETC. 641 (f) IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges (1) that the Respondents, Insulation Contractors of Southern California, Inc., and Insulation Contractors of Southern California, violated Section 8 (a) (2) and 8 (a) (1) of the Act; and (2) that the Respondent Union or its agent, Albert E. Hutchison, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. MEMBER MURDOCK , concurring : I agree with the majority opinion that jurisdiction should be as- serted herein and that the Board may properly consider the "totality of the operations" of all of the members of the Association for the purposes of asserting jurisdiction. As the majority opinion notes, this has been the policy of the Board in the past. I am struck, however, at the incongruity which appears when this action is compared to the recent rejection of the Rutledge doctrine by my colleagues.' In short, as I have explained in my dissenting opin- ion in Rogers Bros. Wholesalers, the Board, by reason of the rejection of the Rutledge formula, will hereafter consider only part of a single employer's operations for jurisdictional purposes. Thus the Board will henceforth look only to the inflow or outflow of a single employer and will not consider the cumulative impact of both inflow or out- flow. Similarly, the Board will look at direct inflow or indirect in- flow of a single employer but not to the combined effect of both direct and indirect inflow. In their approach to the assertion of jurisdiction over the individual employer, accordingly, my colleagues have ex- alted the part over the whole and limit their view of the impact on commerce to one segment of a single employer's operations. While I cannot understand, and the majority opinion does not at- tempt to explain, why the operations of many employers may be re- garded as a single entity and totalled to determine impact on com- merce while the operations of one employer cannot be, I concur in the result reached herein. The inconsistency of this decision and that which rejected the Rutledge formula is patent; but, unlike my col- leagues, I do not consider the latter action supportable in fact or in law. The responsibility for the disparate treatment thus accorded in the assertion of jurisdiction in the future is therefore their respon- sibility and not mine. MEMBER PETERSON took no part in the consideration of the above Decision and Order. s The Rutledge Paper Products, Inc., 91 NLRB 625, now overruled by a majority of the Board in Rogers Bios. Wholesalers, 110 NLRB 604. 338207-55-vol. 110-42 642 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, as amended, we hereby notify you that : WE WILL NOT encourage membership in Local 5 of the Interna- tional Association of Heat and Frost Insulators and Asbestos Workers, AFL, or in any other labor organization of our employ- ees, by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to join or assist any labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of- the Act. WE WILL offer to Maxie Beardon and Claude Van Vlack im- mediate and full reinstatement to their former or substantially equivalent positions as insulation mechanics without prejudice to- seniority and other rights and privileges previously enjoyed, and make each whole for any loss of pay suffered as a result of the dis-- crimination. PLANT INSULATION COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges and amended charges, duly filed by Maxie Beardon , an individual, against Insulation Contractors of Southern California, Inc., herein called the Incor- porated Association, and Plant Insulation Company, herein called Plant , in Case- No. 21-CA-1729, and against Local 5 of the International Association of Heat and Frost Insulators and Asbestos Workers, AFL, and its agent Albert E. Hutchinson, herein called Respondent Union and Hutchinson, in Case No. 21-CB-495, the General Counsel for the National Labor Relations Board issued a consolidated com- plaint alleging that: ( 1) The Incorporated Association had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the National Labor- Relations Act, 61 Stat. 161, herein called the Act; (2 ) Plant had engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2), and ( 3) of the Act; INSULATION CONTRACTORS, ETC. 643 (3) Insulation Contractors of Southern California , herein called the Association" is the successor to Incorporated Association ; and (4 ) the Respondent Union and Hutchinson have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A ) and (2 ) of the Act. It is further alleged that the unfair labor practices complained of constitute unfair labor practices within the meaning of Section 2 ( 6) and (7) of the Act. The substance of the complaint consists of allegations that the Incorporated Asso- ciation on or about December 15, 1952, by contract with the Respondent Union, established membership in the Respondent Union as a condition of employment by any member of Incorporated Association and at all times since the Incorporated Association and its successor , Association , have by reason of this contract and by practice required membership in the Respondent Union as a condition of employ- ment; that Plant discharged its employees , Maxie Beardon and Claude Van Vlack, on April 17 , 1953, upon the demand of Hutchinson , a representative of the Respond- ent Union, because they were not members of that organization ; and that about May 5, 1953 , Plant reemployed Beardon and Van Vlack in positions less desirable than those from which they were discharged . It is further alleged that the Respond- ent Union and Hutchinson caused the discharge of Beardon and Van Vlack. By answer the Incorporated Association and Plant deny the commission of unfair labor practices and the Association denies that it is the successor to Incorporated Association . The Respondent Union and Hutchinson deny the allegations in respect to them. Pursuant to notice a hearing was held before me in Los Angeles, California, on January 27 , 28, and 29, 1954. All parties were permitted to examine and cross- examine witnesses and to introduce evidence relative to the issues . Following the close of the hearing, a brief has been received from counsel for the Respondent Employers and a letter supporting the contentions of that brief has been filed by the Respondent Union and Hutchinson. Upon the basis of the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS AND THE LABOR ORGANIZATION INVOLVED 1. The Incorporated Association is a nonprofit corporation , organized under the laws of the State of California with its principal office and place of business at Los Angeles. The Incorporated Association has been the duly authorized agent for its members , among them Plant , Fiberglas Engineering Supply Company, Reece Insulation Company, and J. T. Thorpe, Inc., for purposes of representing its mem- bers in collective bargaining with labor organizations . The Incorporated Associa- tion took steps toward dissolution in August 1953 and filed a final certificate in that respect in December of that year . It is no longer functioning. 2. The Association is an unincorporated , voluntary association of employers engaged in insulation work in the Los Angeles area, among them Plant, and exists for the purpose of representing its members in matters of collective bargaining with labor organizations. 3. Plant is a California corporation engaged in the distribution and installation of insulating materials , with its principal office and place of business in Los Angeles. During the calendar year 1953 Plant shipped goods and performed services outside the State of California valued in excess of $25,000, and did a total business in excess of $500,000 that year. Plant, as ' a subcontractor, performs some services at the United States Navy Yard at Wilmington , California. 4. Respondent Union is a labor organization admitting to membership employees of Plant, and Albert E. Hutchinson is its business agent. H. THE UNFAIR LABOR PRACTICES A. The 1951 Board decision In an unfair labor practice proceeding involving the Incorporated Association and its members , among them Plant, and the Respondent Union,2 the Board on October- 31, 1951, found that the Incorporated Association and its several members had ex- 'No charge was filed against the Association and it is not alleged to have committed any unfair labor practice. 2Mundet Cork Coipoiation and Insulation Contiactois of Southern California, Inc,. 96 NLRB 1142 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ecuted, 'accepted, and enforced an unlawful hiring agreement with the Respondent Union and ordered them to withdraw recognition from the Respondent Union and to cease giving effect to a contract between them dated May 28 , 1950. The Respond- ent Union in the same proceeding was required to cease and desist from causing the Incorporated Association and its members to discharge employees or to deny employ- ment to qualified applicants in violation of Section 8 (a) (3) of the Act; entering into, renewing, or enforcing any agreement with the Incorporated Association or its members containing union-security provisions except as authorized by the proviso to Section 8 (a) (3) of the Act ; performing or giving effect to the 1950 agreement or to any other contract, agreement, or understanding with the employers until certified by the Board, or informing employees of any of the employer members of the In- corporated Association that nonmembers of the Respondent Union would not be permitted to work without permits issued by it or that nonmembers of the Union would not be permitted to work at all in the field of commercial insulation.3 B. The discharges Maxie Beardon and Claude Van Vlack at one time were members of a union re- ferred to in the record as Local 5B , a subsidiary of the Respondent Union . Upon the dissolution of Local 5B in the summer of 1950, Beardon became a member of Local 25, United Brotherhood of Carpenters and Joiners of America , herein called the Carpenters, and Van Vlack, of Local 1506 of that organization . In the spring of 1950 Beardon and Van Vlack were hired by Plant as insulation mechanics and continued regularly in that employment until April 17, 1953 . There is evidence that Beardon and perhaps Van Vlack were not finished mechanics in cork insulation, but they did on occasion perform this type of work for their Employer. The evidence is that in general each was a completely acceptable employee, fully capable of performing the work required of him. Jay R. Cordell , Plant's labor superintendent, testified that he knew who among Plant's employees was a member of the Respondent Union and , implicitly, that Beardon and Van Vlack were not. He testified that he had instructed them, in the event of any trouble arising on a job which might affect the customer , to leave their work. Cordell explained that by trouble , he meant jurisdictional disputes , arguments with fellow employees, or any union or other difficulty threatening satisfactory serv- ice to a customer of Plant. On Friday, April 17, 1953, Beardon and Van Vlack were doing insulation work in a building on Olympic Boulevard in Los Angeles. About noon of that day three business agents appeared at the job site-Hutchinson of the Respondent Union, Arthur Eisele of Carpenters Local 1506, and Roy Wallace of Carpenters Local 25. Hutchinson demanded that Beardon and Van Vlack dis- play their union cards. They refused to comply. According to Beardon, he and Van Vlack moved to another part of the building in an effort to avoid Hutchinson, but the latter followed and finally said, "Mack, you got to get off the job. We are tired of carrying you. We have been carrying you three years." Beardon then dis- played his union card to Wallace, who said, according to Beardon , "I'm your busi- ness agent and I 'm going to do all in my power to keep you from getting another trick." Van Vlack testified that his business agent, Eisele, said that Van Vlack was not doing work within the jurisdiction of Local 1506 and that he would have to get off the job. Van Vlack testified further that he overheard Wallace tell Beardon that he, Wallace, was "tired of carrying us around" and that he would arrange it so that Beardon would never again do that sort of work. Beardon and Van Vlack then left the premises. Hutchinson, while admitting that he was present on this occasion , testified that he did no more than demand that each of the two produce his union card and, when Beardon refused to do so, turned and left. Eisele and Wallace testified that they examined the cards of Beardon and Van Vlack and that each was told he was work- ing outside his jurisdiction , but denied ordering them to get off the job or threaten- ing to keep them from getting further employment of the nature that they were doing. After leaving the group, Hutchinson went over to talk to a sheet metal worker and told him that Beardon and Van Vlack were carpenters working out of their jurisdiction. Within a few minutes after leaving the job site Beardon telephoned his Employer to report what had happened . Cordell was on vacation and Beardon spoke to Cor- dell's assistant, Denver Tarver. According to Beardon, he told Tarver that Hutchin- 3 Aa distinguished from residential insulation or other insulation not involving "duct wrapping." INSULATION CONTRACTORS, ETC. 645 son, Eisele, and Wallace had "pulled us off the job" and that Hutchinson demanded that they leave the job site. Beardon testified that Tarver instructed him to go home to await a call from Plant. Tarver testified that on this occasion Beardon said that Hutchinson and the other business agents had come to the job and asked him to dis- play his union card. Tarver said from the stand that he could recall no assertion by Beardon in his telephone conversation that Hutchinson had told him to get off the job. Tarver testified that he told Beardon he did not know what to do and instructed him to wait until someone in authority contacted him.4 Tarver acquainted Cordell with the situation over the weekend and on Monday Cordell, through Tarver, arranged to have two other employees report to the job to complete the work. Cordell admitted that Tarver told him there was some union trouble or dispute on the job and testified that to avoid involvement in it, he did not inquire about details. On Monday afternoon Beardon telephoned Cordell and asked if there had been any development in the union situation and if there was any work for him. Cordell answered that he had not spoken to the Respondent Union and that there was no work. Cordell did not inquire of Beardon at that time concern- ing the incident of the previous Friday. Again, on Tuesday, Beardon telephoned to ask the same questions and received the same answers. On Thursday or Friday Beardon and Van Vlack came to Plant's office and spoke to Cordell about getting back to work. Cordell told them that a new contract had been signed 5 and sug- gested that they go to the Respondent Union for a job referral, that he had no work for them. Neither Beardon nor Van Vlack did so until several months later. Plant recalled them to work on several days during the month of May, and since about the first of July 1953, each has been working steadily for Plant. Not since April 17, 1953, however, has Beardon or Van Vlack worked for Plant as an insulation mechanic. The type of work done by them since that date is compensated at a rate about 30 cents an hour less than they had earned before. C. The collective-bargaining contracts Mention has been made of a contract between the Incorporated Association and the Respondent Union dated May 28, 1950, which the Board found to incorporate unlawful union-security conditions. It is the contention of the General Counsel, de- spite the Board Order and•any assumption that the Respondents in the earlier case must have satisfied the Board at some point that the Order had been complied with, that the 1950 contract was given effect by the parties from the date of its execution to April 22, 1953. All witnesses for the Incorporated Association, for Plant, and for the Respondent Union denied that this was so. On April 22, 1953, the Incorpo- rated Association and the Respondent Union entered into an agreement containing a union-security arrangement which the General Counsel does not here attack. In a closing sentence, the agreement recites: "This agreement is a part of a basic labor agreement between the parties presently extended to May 28, 1953, and shall become effective at the date hereof and remain in full force and effect for the period of the basic labor agreement and any extensions or renewals thereof." The General Counsel argues that the reference to "a basic labor agreement between the parties" can have meaning only in respect to the unlawful agreement entered into on May 28, 1950, and that by that language the Incorporated Association and the Respondent Union have admitted that the 1950 agreement has, contrary to the Board's Order, been kept in effect for the interim period. J. S. Baum, president of Plant and secretary of the Incorporated Association, tesrtified that "basic labor agreement" was intended to mean and did mean no more than the practice of the employer members of the Incorporated Association, including Plant, of paying wages generally applicable to mechanics in the industry and the observance of other cost benefits, such as travel time. Baum denied that the 1950 agreement was ex- tended through, or given effect in, any period with which the complaint is concerned. Prior to the issuance of any complaint in this matter, during the investigative stages of the case, Attorney Steck, then apparently representing only Plant, on July 10, 1953, wrote to the Board's Regional Office in Los Angeles, in part, as follows: The company has no written agreement with the Carpenters Union. How- ever for years it has been a party to an agreement with Asbestos Workers, Local No. 5. This agreement was executed by Insulation Contractors of South- ern California, Inc., a non-profit corporation, of which the company is a mem- ber. On April 17, 1953 the effective agreement between the company and the 4 Tarver planned to report the problem to Cordell and later did so It is not suggested that he intended that Bearden and Van Vlack stay at the job site for instructions. 6 Clearly, a reference to the April 22 agreement which is later described herein 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union so far as the union security provision is concerned was an agreement of May 28, 1950. The relevant provisions of this contract are summarized in your files commencing at page 11 of the Trial Examiner's Intermediate Report in Consolidated Cases No. 21-CA-491, etc. ("Mundet Cork Corporation et al."). As I advised you yesterday the Board held in these latter cases that the agree- ment of May 28, 1950 did provide for a union shop contract Following com- pliance by the company and the union with all provisions of the Board's order in the consolidated cases, the company received from the Board a letter of May 19, 1952 stating that compliance had been effected. Prior to that time the Board had conducted a certification election in which Local 5 was certified as the bargaining representative for all asbestos mechanics employed by the company. The parties thereupon reinstated, and had in effect on April 17, 1953 the union security contract which was before the Board in the consolidated cases. On April 22, 1953 Insulation Contractors of Southern California, Inc. and Local 5 implemented this union security agreement by executing a type of union security clause which I believe has met with the informal approval of the Board locally in building trade cases generally. I enclose for your files an un- signed copy of this agreement of April 22, 1953. On May 28, 1953 Insulation Contractors and Local 5 executed for the first time since 1950 a new form of printed agreement, Articles V and XI of which are identical with the language set forth in prior agreements commencing at page 11 of the Intermediate Report referred to above. Article VII of the new agreement reads as follows: Local 5 will direct non-members to the employers in the numbers agreed upon and shall issue them Referral Cards for purpose of identification and classification. You will note that the agreement of April 22, 1953 provides in its Article VIII that it shall remain in effect for the period of the "basic labor agreement and any extensions or renewals thereof." In order to remove any doubt, however, that the execution of the May 28, 1953 agreement would not affect the April 22, 1953 agreement there was executed on June 4, 1953 a letter agreement between Insulation Contractors and Local 5 to make it clear that the April 22, 1953 agreement continues in effect at this time. I enclose for your files a conformed copy of the June 4, 1953 agreement. 3. Facts of the Present Case. The facts of the present case so far as the company is concerned are all sum- marized in a letter to me of July 2, 1953 from Mr. Baum reading in part as follows: The circumstances causing Maxie Beardon's temporary termination from this company was entirely jurisdictional. Mr. Beardon carries a card in Local No 1506, a Carpenters' Local, having jurisdiction over home in- sulation, dry wall construction, etc. Mr Beardon was employed by us on a project in which he was installing Fiberglas insulation to air con- ditioning ducts which falls under the jurisdiction of Local No. 5, Asbestos Workers. After five hours work on Friday, April 17, 1953, Mr. Beardon telephoned the office that he had been "knocked off the job" by the Business Agent of Local No. 1506, Mr Art Eisele. He was properly referred to Local No. 5 for work clearance shortly after that date, this clearance to be issued under the terms of the Articles of Agreement, dated April 22, 1953, which con- firmed our Union Shop relations with Local No. 5. (We believe you have a copy of this, Agreement.) Since that date Mr. Beardon has been intermit- tently employed in home insulation and carpenter work, having worked for us during the weeks of May 3d, May 17th, May 24th and May 31st. During the numerous telephone calls reported by Mr. Cordell during the week of April 20th, Mr. Beardon made a statement that he was going to take a three weeks vacation. Upon his return from his vacation he was called by Mr. Cordell for a job assignment and was told that Mr. Beardon had been ill since his return from his vacation. We have made a sincere effort to employ Mr. Beardon in work covered under the jurisdiction of Local No. 1506. Attorney Steck objected strenuously to the receipt of this letter in evidence, claim- ing that it did not constitute admission on the part of any respondent represented by him, but merely his then belief as to the facts of the case, which later proved to INSULATION CONTRACTORS , ETC. 647 be inaccurate . As the statements made in the letter appear to be within the scope of Attorney Steck's agency , and as in part they appear to be against the interest of Plant, I have considered them as part of the evidence in the case . That portion of the letter which purports to quote a letter to Attorney Steck from J. S. Baum, Plant's president , relating to the termination of Beardon, was not disavowed by either Baum or Steck at any time during the hearing. It is argued that statements of counsel not made during the course of trial are not admissible in California courts against the client unless certain formalities are met. I do not consider that this rule, whatever its scope, has application to a Board proceeding . In the answer filed in behalf of the Incorporated Association and Plant, it is denied that the collective-bargaining agreement of 1950 was extended in any form beyond May 28, 1952. It is there asserted that during the period of about June 1952 to April 22, 1953, the employers and the Respondent Union observed , informally, a union- shop practice in compliance with the terms of the Act. During the course of the hearing Attorney Steck offered to stipulate that for the period May 28, 1952, to April 22, 1953 , the parties observed a union-shop practice identical with the terms of the agreement signed on April 22, 1953 . Hutchinson , at that point, stated that he agreed with Steck's description of the situation as it then existed. It may be recalled that the complaint alleges the execution of a written collective -bargain- ing agreement on or about December 15, 1952, requiring membership in the Re- spondent Union as a condition of employment , and the practice then and there- after of effecting closed shop conditions at the shops of the various employer mem- bers of the Incorporated Association . These varying contentions , admissions, and denials have little beyond their utterance to support them. It appears to be the fact that the Respondent Union is, for all practical purposes , the sole source avail- able to employers for the recruitment of insulation mechanics . Hutchinson testi- fied that for the past year or two many nonmembers of the Respondent Union had been dispatched through his organization to fill the requests of employer members of the Incorporated Association . An examination of his testimony leaves little doubt, however, that at least until April 22, 1953, nonunion members were not dispatched while members remained unemployed . Assuming that to have been the situation up to April 22, 1953, the Respondent Union, by such conduct, did not necessarily violate the Act in any respect. A union is not under obligation to obtain employment for those not its members unless it has by contract constituted itself the sole avenue leading to hire. The agreement effective April 22 provides, in part, as follows: The ASSOCIATION and the UNION agree that in the employment of work- men for all work covered by this Agreement, the following conditions and procedure shall govern: That the UNION shall establish and maintain open and non-discriminatory employment lists for employment of workmen in the work and area jurisdiction -of the UNION. That the members of the ASSOCIATION shall first call upon the UNION for such men as they may from time to time need , and the UNION shall immediately furnish to the ASSOCIATION member the required number of qualified and competent workmen and skilled mechanics of the classifications needed by the ASSOCIATION member. That the UNION will furnish each such required competent workman or skilled mechanic entered on its lists, to the ASSOCIATION member by use of a written referral and will furnish such workmen or skilled mechanics from the UNION'S listings in the following manner: (a) The specifically named workmen who have been recently laid off or ter- minated in the UNION'S work and area jurisdiction by the ASSOCIA- TION member desiring to reemploy the same workmen in that same area provided they are available for employment. (b) Workmen who have been employed by the ASSOCIATION members in the UNION'S work and area jurisdiction within the multiple -employer unit during the previous ten (10) years, and are available for employment. (c) Workmen whose names are entered on the list of the UNION having work and area jurisdiction and who are available for employment. That reasonable advance notice (but not less than 24 hours ) will be given by the ASSOCIATION member to the UNION , upon ordering such workmen or mechanics ; and in the event that 48 hours after such notice , the UNION shall not furnish workmen, the ASSOCIATION member may procure workmen from any 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other source or sources . If men are so employed, the ASSOCIATION mem- ber will immediately report to the UNION each such workman by name. III The ASSOCIATION agrees that workmen employed by ASSOCIATION members or workmen employed by their SUB -CONTRACTORS for a period of thirty ( 30) days continuously or accumulatively within the multiple-employer unit and procured in accordance with Article II of this Agreement or procured from other sources by the ASSOCIATION members and their SUB -CONTRAC- TORS shall become members of the UNION immediately upon terms and qualifications not more burdensome than those applicable at such times to other applicants of the UNION. If, as Hutchinson and Attorney Steck offered to stipulate , such a union-security arrangement was in effect for a period of about a year prior to the date of the execution of the quoted agreement , and if, further, the Respondent Union during that period was giving preference in dispatching to its own members, a violation of the Act would have existed . But the offered stipulation was not accepted and I do not in that situation consider the existence of such an agreement to have been established . Upon a consideration of the varying contentions , admissions, denials, and the slight evidence of any other character bearing upon the issue , I find that the evidence does not establish by its preponderance just what qualifications of membership in the Respondent Union, if any, were a requisite during the period from May 28 , 1952, to April 22, 1953, to retain or obtain employment with mem- bers of the Incorporated Association . At some point during the history of this case, and perhaps now, Plant has defended the termination of employment of Beardon and Van Vlack upon the ground that they had failed to comply with the conditions of a valid union-shop agreement . Such a defense , to be meritorious, must, at a minimum and at the outset, rest upon a clearly stated union -security agreement .6 The position of the Incorporated Association and Plant, as stated in this record, is confused and self-contradictory to the extent that I do not find that any qualification of membership in the Respondent Union was a condition of em- ployment at any time, by virtue of a valid contract , during the period from May 28, 1952, to April 22, 1953. As the unfair labor practice charged against the Incorporated Association is the execution of an invalid union-security or closed shop agreement on or about Decem- ber 15, 1952 , as I consider there to be a failure of proof in respect to the existence of any such agreement at any time of concern in this proceeding , and as there is a complete absence of proof that the Incorporated Association has by practice given effect to closed shop conditions affecting -employees of its members, I find that the Incorporated Association has not violated the Act in any particular . It follows, therefore, that there are no unfair labor practices for the Association, if it be a successor, to remedy. D. Conclusions as to Beardon and Van Vlack Sometime in March 1950, before beginning his employment with Plant , Beardon filed an application for membership in the Respondent Union and accompanied it with a check representing the initiation fee. His application was rejected, and when, a year later, Beardon inquired of Hutchinson if it might be renewed , Hutchin- son replied , according to Beardon, that nothing could be done for him. Hutchinson testified that on April 17, 1953 , he was making a routine check of employees on construction jobs when he encountered Beardon and Van Vlack. The "routine check," Hutchinson conceded, was to implement a purpose of keeping each craft within the jurisdictional lines of the American Federation of Labor in the building trades department . By keeping members of unions other than the Respondent Union from working within the jurisdiction of the latter, jurisdictional disputes might be minimized or avoided . On that day, as for many days in the preceding 3 years, Beardon and Van Vlack were working peacefully at their assign- ments, entirely content, it seems, with their rather substantial hourly earnings and satisfying the requirements of their Employer . The visit of Hutchinson and the other two business agents abruptly terminated this harmonious arrangement. The complaint alleges that the Respondent Union caused the change. The issue turns in part on what Hutchinson did then . Beardon alone among those present on the occasion testified that Hutchinson ordered him to leave the job . Van Vlack testified 6 Otis Elevator Company, 97 NLRB 786, 791. INSULATION CONTRACTORS, ETC. 649 That Wallace told Beardon that he "was tired of carrying us around , that he was going to see that Mr. Beardon would never do that kind of work again ," and that Eisele said to Van Vlack , "You're not in your kind of work. You will have to get off the job." Van Vlack described the incident as "pretty excitable " and upon questioning at the hearing by Hutchinson said , ". . . I know you was quite white in the face . I don't know whether you was ready for a fight , I don't know what was the matter, but you were excited about something . I know that." According to Van Vlack, the three business agents followed him and Beardon to a corner of the building where their insulating material was . At no point in his testimony did Van Vlack attribute to Hutchinson any remark concerning leaving the job, only that Hutchinson asked to see his union card. His testimony viewed from a standpoint most favorable to the General Counsel does no more than suggest that Hutchinson may have been present when Eiseie and Wallace spoke to the two workers. Hutchin- son testified that he asked Beardon and Van Vlack for their building trades cards, that Beardon said , "Don't tell this guy nothing, . . . Let's roll this stuff up, . and -get out of here." According to Hutchinson nothing further happened in his presence or hearing ; that he then left the spot to talk to another worker in a different place in the building. Eisele and Wallace testified that they heard Hutchinson say no more than he admitted and denied that they had ordered the men to get off the job or did more than tell them they were working out of their jurisdiction. In general , Beardon , Van Vlack, Hutchinson , and Wallace impressed me as credible witnesses . Eisele answered questions , however, in such an evasive manner as to cause me to have some doubt as to his reliability. An antipathy running between Beardon and Hutchinson which may have served to color their testimony, perhaps unconsciously, was apparent from the demeanor of each. The same feeling did not appear to exist in respect to Van Vlack. I am persuaded that the version given by Van Vlack as to what happened on April 17 is the dispassionate one and I credit it. I find that on that occasion , Hutchinson asked to see the union cards, that Eisele and Wallace made the remarks Van Vlack attributed to them, and that the presence of Hutchinson when they were made is not established. In leaving the job as they did, Beardon and Van Vlack were following the instruc- tion of Cordell . It is clear that the instruction was given in order that any develop- ment containing the possibility of labor or other trouble, which of course would affect Plant's ability to carry out the terms of whatever contract he may have had to perform , was to be avoided . The evidence suggests, but perhaps does not estab- lish, that Plant may have believed the Respondent Union to have been unaware of the continued employment of Beardon and Van Vlack. Beginning in April 1952, pursuant to agreement with the Respondent Union, Plant made monthly payments to it based upon the earnings of individual employees within the bargaining unit it represented under a health and welfare plan. The list, supplied monthly to the Respondent Union along with Plant's check , gave the name of each employee in whose behalf the payment was made, whether a member or not. The names of Beardon and Van Vlack never appeared. Whether this resulted from an attempt by the Respondent to keep knowledge from the Union of their employment, the record does not answer.? Nor does it explain, satisfactorily, the reason for Cordell's instruction to the two to leave the job at once in the event of any sort of dispute ,or trouble, including such developments involving a union, except upon the hypothesis that Cordell anticipated an objection by the Union at some time to the employment ,of Beardon and Van Vlack as insulation mechanics and had determined that in such an eventuality they were to leave their jobs rather than risk anything in the nature of a strike or other interruption to work. Cordell's reaction in learning that Beardon and Van Vlack had left their assignment, is consistent with that hypothesis. As he testified, he did not want to get involved in any trouble and the simple way for him to handle the situation was to send other mechanics out to complete the job. It is of course most significant that Beardon and Van Vlack, after April 17, were never again afforded employment by Plant in any work under the claimed jurisdic- tion of the Respondent Union despite the fact that Plant thereafter hired many addi- tional insulation mechanics . Plant must have felt that risk was involved in returning these men to the work that they had performed for the past 3 years, so other employ- ment was found for them. President Baum and Superintendent Cordell denied that the Respondent Union made any representations to Plant in connection with the continued employment of Beardon and Van Vlack. Hutchinson denied that be requested Plant to do anything Cordell testified that sometime before April 17 Hutchinson inquired why Beardon and Van Vlack were not listed . That inquiry evidences Hutchinson 's awareness of their employment 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the two men. Although it seems as clear as can be that had not Hutchinson and the other two business agents appeared on the scene on April 17, Beardon and Van Vlack would have continued in their work until its completion and then, as in the past, would have been assigned further work as insulation mechanics, as oppor- tunity permitted, it does not follow that, within the meaning of Section 8 (b) (2) of the Act, the Respondent Union caused their loss of employment. Hutchinson, in effect, admitted a purpose to keep Beardon, Van Vlack, or any other nonmember of the Respondent Union, from working as insulation mechanics.8 But on the facts as developed here, he did no more about it than request the two to display their union cards. I consider the threats uttered on this occasion by Wallace and Eisele, out of the presence of Hutchinson, to establish no liability in the Respondent Union. Wal- lace and Eisele were agents of other labor organizations not named here as respond- ents. The evidence does not establish by its preponderance that Hutchinson caused or attempted to cause Plant to discharge Beardon and Van Vlack. Cordell knew from the information given him by Tarver that Beardon and Van Vlack had left their work because of some union trouble. He also knew that in leav- ing they were following instruction which he had given. In these circumstances it was the duty of Plant to take effective action to assure Beardon and Van Vlack that they would be protected in their right to work. Not only did Plant fail to do this, but on the contrary it indicated, by failing to call the men back to work in the jobs they had held, its acquiescence to the situation. The responsible officials of Plant, by their conduct, evidenced a belief that the continued employment of Beardon and Van Vlack as insulation mechanics might lead to a labor dispute, and an unwillingness to hazard such a development .9 By depriving them of employment as insulation me- chanics, Plant implemented the purpose of the "routine check." I will assume that Plant had no intention to encourage or discourage membership in any union; that, as I have found, the discharges were made solely to prevent the development of a dis- pute with the Respondent Union or any other labor organization which might lead to a work interruption. But the forseeable consequence of Plant's conduct was to encourage employees to perform work only within the jurisdictional boundaries set by their union. Thus Plant, at the expense of Beardon and Van Vlack, did what it believed would be welcomed by the Respondent Union and the Carpenter locals and terminated two satisfactory employees because it believed that their continued em- ployment was displeasing to those organizations. That no demand for such action by any of the unions mentioned is established by this record is immaterial. The nat- ural consequence of the discharges was to encourage all employees doing commercial insulation work to reach an understanding with the Respondent Union. True, mem- bership in that organization might not have been granted to them, but the encourage- ment is no less real for that reason.10 I find that by the discharge of Beardon and Van Vlack, Plant encouraged member- ship in or approval by the Respondent Union and that Plant thereby discriminated against employees within the meaning of Section 8 (a) (3) of the Act. By such discrimination, Plant interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Sec- tion 8 (a) (1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Plant set forth in section II, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship 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. 8 Inconsistently, it appears that in December 1953 and at other times, Plant had a large number of employees in the Respondent Union's jurisdiction who were not its members. Some of these, according to Hutchinson, were applicants for membership not yet capable of meeting the exacting standards of competency which his organization had set All, ex- cept Beardon and Van Vlack, were named in the welfare fund list. As the purpose of the union card check on various job sites was to insure that men were working within the jurisdiction of the union to which they belonged, and as the Respondent Union was on notice that many nonmembers were working for Plant in commercial insulation, it is evi- dent that the Respondent Union for some reason was not enforcing its right under the April 22, 1953, agreement to require nonmembers to join after 30 days' employment 5N. L R B v. Pappas and Co., et at , 203 F 2d 569 (C A. 9), enfg. 94 NLRB 1195. iU N. L R. B. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, etc , Local Union No. 41, AFL, 347 U. S. 17. JACKSON CHAIR COMPANY, INC. 651 IV. THE REMEDY Having found that Plant has engaged in certain unfair labor practices, I shall recom- mend that it be ordered, to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Plant has discriminated in regard to the hire and tenure of employment of Maxie Beardon and Claude Van Vlack, I shall recommend that Plant offer to each of them immediate and full reinstatement to his former or substantially equivalent position as insulation mechanic, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay suffered as a result of the discrimination by payment to him of a sum of money equal to the amount he would have earned as an insulation mechanic from April 17, 1953, to the date of the offer of reinstatement, less his net earnings during that period. The computation shall be made on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that Plant make available to the Board upon request payroll and other records to facilitate the checking of back pay. Having found that the evidence does not establish that the Respondent Union and Hutchinson caused or attempted to cause the discharge of Beardon and Van Vlack, and as there is no evidence that the Respondent Union and Hutchinson restrained or coerced Beardon or Van Vlack in respect to rights guaranteed in Section 7 of the Act, it will be recommended that the complaint against the Respondent Union and Hutchinson be dismissed in its entirety. As the evidence does not establish any violation of the Act by the Incorporated Association, it will be recommended that the complaint against the Incorporated Association and the Association be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 5 of the International Association of Heat and Frost Insulators and As- bestos Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Albert E. Hutchinson is the agent of the above-named Union. 3. By discriminating in regard to the hire and tenure of employment of Maxie Beardon and Claude Van Vlack, thereby encouraging membership in and approval by the Respondent Union, Plant Insulation Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By thus interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Plant Insulation Company has engaged 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The evidence does not establish any violation of the Act on the part of Insula- tion Contractors of Southern California, Inc., Insulation Contractors of Southern California, Local 5 of the International Association of Heat and Frost Insulators and Asbestos Workers, AFL, and its agent, Albert E. Hutchinson. [Recommendations omitted from publication.] JACKSON CHAIR COMPANY, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, AFL. Case No. 9-CA-746. October 29, 1954 Decision and Order On June 3, 1954, Trial Examiner C. W. Whittemore issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and 110 NLRB No. 102.