Hall Electric Co.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HALL ELECTRIC COMPANY and JOHN R. STONE HALL ELECTRIC COMPANY and GEORGE Sum INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 948, AFL, AND ITS BUSINESS AGENT, WILLIAM SNEDDEN and GEORGE SUSKI INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 948, AFL, AND ITS BUSINESS AGENT, WILLIAM SNEDDEN and JOHN R. STONE. Cases Nos. 7-CA-1007, 7-CA-1008, 7-CB-181, and 7-CB- 182. January 5,1955 Decision and Order On March 30, 1954, Trial Examiner George A. Downing issued his Intermediate 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 therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel and the Charging Parties filed exceptions to the Intermediate Report. The General Counsel also filed a motion to reopen the record and the Re- spondents filed objections to this motion. 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 Interme- diate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. The Trial Examiner found that the Company transferred the Charging Parties, Suski and Stone, from the Fisher Body job to an- other job at the AC Spark Plug plant, that this transfer was made be- cause Suski and Stone did not have referrals from the Union, and that the Company required referrals from the Union as a condition of em- ployment on the Fisher Body job. By the foregoing conduct, the Trial Examiner found, the Company violated Section 8 (a) (1), (2), and (3) of the Act. He further found that by causing or attempting to cause the Company to violate Section 8 (a) (3) in the aforesaid man- ner the other Respondents violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. No exceptions have been taken to these findings and we adopt them. The General Counsel and the Charging Parties except, however, to the failure of the Trial Examiner to recommend an award of back pay to the Charging Parties to make them whole for the loss of earn- ings suffered by them as a result of the discrimination against them found by the Trial Examiner. Such an award is the conventional remedy for violations of Section 8 (a) (3). In the instant case the 111 NLRB No. 5. HALL ELECTRIC COMPANY 69 Trial Examiner stated that he would not recommend back pay be- cause, immediately after their discriminatory removal from the Fisher Body job, Suski and Stone accepted the Company's offer of "substan- tially equivalent" employment on the AC Spark Plug job. The excepting parties contend, however, that the new job was not substantially equivalent to the old because, as the record shows, Suski and Stone would have received about 92 hours more overtime on the old job than they received during the same period on the new job. It is therefore urged that the discriminatees should be compensated for this loss of overtime. We agree. It having been found that the Com- pany discriminated against Suski and Stone, they are entitled, under Board policy, to any loss of earnings resulting from such discrima- nation. It is undisputed that as a result of their removal from the Fisher Body job, Suski and Stone were deprived of substantial over- time earnings. It is immaterial, from the standpoint of the remedy, that, as the Trial Examiner found, neither the Respondents nor the discriminatees were aware, at the time of the transfer, that the new job would yield less overtime than the old job. We have not hereto- fore limited back pay awards to an amount which was foreseeable by the parties at the time of the discrimination. Such considerations of foreseeability or expectability are clearly irrelevant to the purpose of back-pay awards, which is to make victims of discrimination whole for the loss actually suffered. "Only thus can there be a restoration of the situation, as nearly as possible, to that which would have ob- tained but for the illegal discrimination." Phelps Dodge Corp. v. N. L. R.B.,313U. S. 177,194. Even if we viewed the case, as the Trial Examiner apparently did, not as a discriminatory transfer, but as a discriminatory discharge from one job (at the Fisher Body plant) and an offer of reinstatement to another job (at AC Spark Plug), such offer would not suffice, under Board policy, to terminate the Company's liability for back pay. So long as their jobs at Fisher Body were still in existence, the Company could extinguish its back-pay liability only by offering to restore Suski and Stone to those jobs, and it would not suffice to offer them other jobs, even though substantially equivalent of their old jobs.' It is clear from the record that when the Company offered Suski and Stone new jobs, their old jobs at Fisher Body had not been abolished but were still in existence. Accordingly, whatever view we may take of the case, we see no reason for denying to Suski and Stone the usual back- pay remedy. We will, therefore, order the Respondents, jointly and severally, to make Suski and Stone whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to 'The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 829 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of them a sum of inoney equal to the amount he normally would have earned as wages on the Fisher Body job less net earnings during that period.2 2. The General Counsel excepts to the failure of the Trial Examiner to find (1) that the Union violated Section 8 (b) (1) (A) of the Act by conditioning job referrals on the payment of working assessments, and (2) that the Respondents had adopted illegal closed shop and hiring hall arrangements, embodied in special contractual provisions and union bylaws. The Trial Examiner omitted any findings on these matters because he did not deem them to have been sufficiently pleaded or litigated. While it appears that the closed shop and hiring hall arrangements were sufficiently alleged in the complaint, we are not satisfied that any of the matters now alleged by the General Counsel as additional violations was fully litigated. In any event we construe the order recommended by the Trial Ex- aminer as broad enough to reach any discriminatory hiring arrange- ments among the Respondents, including those alleged in the General Counsel's exceptions. In view of those circumstances, we will over- rule the General Counsel's exceptions to the Trial Examiner's failure to find the additional violations referred to above. Order Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. Respondent Company, its officers, agents, successors, and as- signs shall : (a) Cease and desist from : (1) Assisting and contributing support to International Brother- hood of Electrical Workers, Local 948, AFL, and encouraging mem- bership in said Union, or in any other labor organization, by requir- ing referrals by, or clearance from, a union as a condition of employ- ment, or by discriminating in any other manner in regard to the hire or tenure of employment of employees or any term or condition of their employment. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected 2 See Crossett Lumber Company, 8 NLRB 440 As no exception has been taken to the Trial Examiner 's failure to recommend reinstatement of Suski and Stone, we will not require their reinstatement by the Company. In view of our agreement with the General Counsel on the back-pay issue, no useful purpose would be served by granting the General Counsel 's motion to reopen the record for the purpose of adducing evidence in support of his position on that issue The mo- tion is therefore denied HALL ELECTRIC COMPANY 71 by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3). (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Henceforth employ employees without regard to whether they have procured referrals by or clearance from the said Union or any other union. (2) Jointly and severally with the Respondent Union make whole George Suski and John R. Stone for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the Decision and Order, above. (3) Upon request, make available to this Board and its agents, for examination and copying, all records necessary or useful to the deter- mination of the amount of back pay due under the terms of this Order. (4) Post at its office in Flint, Michigan, and in all other places where notices to its employees in that area are customarily posted, a copy of the notice hereto attached marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Sev- enth Region, shall, after being duly signed by said Respondent, be posted immediately upon receipt thereof and be maintained for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (5) Notify the Regional Director for the Seventh Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. 2. Respondent Union, its officers, representatives, agents, successors, and assigns, and Respondent William Snedden, shall : (a) Cease and desist from : (1) Causing or attempting to cause Respondent Company to dis- criminate against employees or applicants for employment by requir- ing referrals by, or clearance from, the Union as a condition of employment, or in any other manner causing or attempting to cause Respondent Company to discriminate in violation of Section 8 (a) (3) of the Act. (2) In any like or related manner restraining or coercing employees of Respondent Company in the exercise of rights guaranteed by Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 3In the event that this Ox der is enforced by a decree of a United States Court of Ap- peals, 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 " 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Notify Respondent Company, in writing (furnishing copies to John R. Stone and George Suski), that it may henceforth employ said Stone and Suski, and other employees, without regard to whether they procure referrals by or clearance from them. (2) Jointly and severally with the Respondent Company make whole George Suski and John R. Stone for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the Decision and Order, above. (This require- ment applies only to the Respondent Union and not to Respondent Snedden.) (3) Post in conspicuous places in the business offices of the Union at Flint, Michigan, and in all places where notices to members are customarily posted, copies of the notice hereto attached marked "Appendix B." 4 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by said Respondents, be posted immediately upon receipt thereof and be maintained for a period of sixty (60) consecutive days thereafter- Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Seventh Region, in writ- ing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. :In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT assist or contribute support to International Brotherhood of Electrical Workers, Local 948, AFL, or encourage membership in that Union, or in any other labor organization of our employees, by requiring referrals by or clearance from a union as a condition of employment, or discriminate in any other manner in regard to the hire or tenure of employment of employees or any term or condition of their employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such HALL ELECTRIC COMPANY 73 rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. WE WILL henceforth employ employees without regard to whether they have procured referrals by or clearance from the said Union. WE WILL make George Suski and John R. Stone whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain, or to refrain from be- coming members of the above-named Union, or any other labor organi- zation, except to the extent that such right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. HALL ELECTRIC COMPANY, Employer. Dated-------------- By--------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 948, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause Hall Electric Company to discriminate against employees or applicants for employment by requiring referrals or clearance from us as a condition of em- ployment, or in any other manner cause or attempt to cause said Company to discriminate against employees in violation of Sec- tion8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of said Company in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL notify Hall Electric Company, in writing, and will furnish copies to John R. Stone and George Sushi, that it may henceforth employ said Stone and Suski, and other employees, .without regard to whether they procure referrals by or clearance from us, and the undersigned union will make said employees 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole for any loss of pay suffered as a result of the discrimination against them. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 948, AFL, Labor Organization. By------------------------------------ (Representative) (Title) Dated---------------- William Snedden 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 These proceedings, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), and consolidated by order of the General Counsel of the National Labor Relations Board,' were heard in Flint, Michigan, on February 23, 1954, pursuant to due notice. Separate complaints, based on charges duly filed and served, were issued on January 7, 1954, by the General Counsel against the Com- pany and against the Union and William Snedden, its agent. The complaint against the Company alleged in substance that the Company had engaged in unfair labor practices proscribed by Section 8 (a) (3), (2), and (1) of the Act by requiring membership in and/or clearance from the Union as a condition of employment in electrician jobs on the Fisher Body project, and by refusing to continue the employment of George Suski and John R. Stone on the Fisher Body project, and transferring them to the AC Spark Plug project, with resultant loss in overtime work and pay, because they had not been referred to the job by the Union and because the Union demanded that they should not be employed at the Fisher Body project. The complaint against the Union and Snedden alleged that they had caused and attempted to cause the Company to discriminate, as described above, in violation of Section 8 (b) (2) and 8 (b) (1) (A). Separate answers were filed by the Company and by the Union and Snedden de- nying the alleged unfair labor practices. The Company pleaded further that it had hired Stone and Suski and sent them to the Fisher Body job for assignment; that it later learned that it had a surplus of men on that job; and that it then assigned or transferred Stone and Suski, without objection on their part, to the AC Spark Plug project, pursuant to its right and prerogative, recognized by the Union and its employees, to assign employees to whatever job it desired. The Union and Snedden pleaded similarly that they had at all times recognized the Company's right and prerogative to hire, assign, and transfer employees, and that they did not require the Company to discriminate against Stone and Suski as alleged. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. The General Counsel and the Respondents have filed briefs. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT COMPANY Respondent Company, a Michigan corporation, with offices at Flint and Muske- gon, provides electrical materials and electrical contracting and engineering services 'The General Counsel and his representative at the hearing are referred to herein as the General Counsel, and the National Labor Relations Board as the Board. Hall Electric Company is referred to as Respondent Company and Local 948, IBEW, as Respondent Union. All events herein occurred in 1953, except where otherwise specified. HALL ELECTRIC COMPANY 75 to construction sites located in Michigan and in other States. In performing its services, it causes large quantities of products to be transported across State lines to such construction sites. During the year ending November 30, 1953, Respondent Company provided services valued in excess of $75,000 to companies in Michigan, each of whom ship annually in interstate commerce goods valued in excess of $25,000; it provided services and materials valued in excess of $25,000 to an under- taking essential to the military defense of the United States; it provided subcon- tracting services valued in excess of $90,000 to a facility essential to the military defense of the United States; and it provided goods and services valued in excess of $25,000 to points outside the State of Michigan The parties have stipulated, and it is hereby found, that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 948, AFL, is a labor organization which admits to membership employees of Respondent. III THE UNFAIR LABOR PRACTICES A. The employment practices; the issues There was no written collective-bargaining agreement in effect between the Com- pany and the Union. However, the Company recognized the Union as the sole bar- gaining representative of its employees on its projects in Flint, and followed a con- tract between the Union and the Flint Council of the Michigan Chapter, National Electrical Contractors Association. That contract contained union-security pro- visions, amended as of June 26, 1953, whose validity the General Counsel conceded at the hearing, and which provided in part: The Employer shall give the Union five (5) days notice of opportunities for employment in the classifications covered by this Agreement. The Employer agrees to refer new applicants, prior to the beginning of employment, to the local business office of the Union for registration and advice as to the Union Shop requirements of this Agreement. The contract also contained a provision (pursuant to a requirement of the IBEW constitution) that Local 948 was a part of IBEW, and that "any violation or annul- ment of working rules or agreement of any other local union of the IBEW; . or the employment of other than IBEW members on any electrical work in the juris- diction of this or any other such Local Union by the Employer, will be sufficient cause for cancellation of this agreement. The contract provided further that all foremen should be members of IBEW in good standing and that the Union reserved the right to discipline its members for violation of its laws, rules, and agree- ments. The bylaws of Local 948 contained a provision that: It shall be a working rule of this Local Union that any outside firm under- taking any electrical work in the Local Union's jurisdiction shall be permitted to bring in one journeyman member of the I. B. E. W. in whatever capacity such outside contractor decides. All other workmen shall be employed through the office of the Business Manager in the same manner as employees signing an agreement with the Local Union. The general practice of the Company was to call the Union, as the need arose, and notify it of the number of men needed from day to day on pending jobs, though the Union recognized the Company's right and prerogative to assign and transfer employees to jobs as it desired. Men supplied by the Union were usually sent direct to the job site, with referral cards for presentation to the job steward. The duties of the steward (specifically of Steward Guy Peters on the Fisher Body project) included arranging for admission to the job of new employees and their tools, furnishing them with badges and necessary employment forms, and intro- ducing them to the job superintendent and the foremen under whom they were to work. The steward's duties also included reporting to William Snedden, the business agent of the Local, any violation of the contracts or agreements in force between the Company and the Local and any encroachment by other trades and workmen upon the jurisdiction of Local 948. The steward represented the business agent of the Local and was subject to appointment and removal by the business agent. Although the complaint does not attack the contract as such or any other agree- ment between the parties, the General Counsel contends that the provisions of the 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract and bylaws referred to above were the means by which the Union imple- mented a requirement of referrals by or clearance from the Union as a condition of employment by the Company on its Flint projects, as reflected in the circum- stances surrounding the hiring of Stone and Suski, as summarized under the next section hereof. The central issues herein are whether Stone and Suski were in fact transferred from the Fisher Body job to the AC Spark Plug job because they had not been referred to the former job by the Union; whether such transfer was to encourage membership in the Union,2 and whether it constituted discrimination within the meaning of Section 8 (a) (3), in view of the voluntary acceptance by Stone and Suski of jobs which were apparently equal in work and rates of pay. B. The employment of Stone and Suski; their transfer to the AC Spark Plug job Work on the Company's Fisher Body contract got under way on November 2. Around 8:30 a. in. on November 3, Stone and Suski applied for employment direct to the Company's Flint offices. They were hired by Wilfred Dennis, manager and superintendent of the Flint branch, who knew Suski from previous employ- ments, knew that he was a union member, and assumed that the men had been referred by the Union and that they had referral cards. After the men completed the usual hiring forms, they were given badges, and Dennis directed them to report at the Fisher Body job to Steward Guy Peters, who would admit them to the job and arrange also to have their tools taken in on a truck. Stone and Suski went immediately to the applicant gate of the Fisher Body job and reported to Peters, who asked them to produce referrals. Suski inquired what referrals he meant, and Peters replied that he meant a referral from William Snedden, the Union's business agent, that they could not get on the job without a referral. Suski then showed Peters his badge, and Peters said he would have to let them in, but that it would be up to them to get onto the job and to get their tools in the best way they could. After ascertaining from the watchman where the Company's "gang boxes" were located, Stone and Suski got their tools, reported there, and waited for orders to go to work. While they were there, Robert Linn and George Elsie reported to Peters, presented referrals from the Union, were given badges and the usual hiring forms, and put to work. In the meantime Peters had reported to Harold Phillips, the Company's general foreman on the job, that Stone and Suski had no referrals, and Phillips remarked that they had possibly gotten onto the wrong job and that he would call Dennis. Phillips did so, and Dennis came to the job shortly. Stone and Suski testified that Dennis called them aside, told them that they had him in hot water with the Union, that the job was so big he had to "play ball" with the Union, and that he would have to let them go. However, he told them to wait a minute, and went over and talked to Peters briefly. When he returned, he told them he was transferring them to the AC Spark Plug job. They accepted that assignment without objection, reported to that job at once, and were assigned to work without referrals from the Union, although that job was also subject to the same agreement as the Fisher Body job. Dennis testified that when he arrived at the job he found a lot of confusion resulting from the fact that the job was just getting under way and that there were more employees present than were needed; that after talking to Phillips, he decided to transfer Stone and Suski to the AC Spark Plug job, where 2 men were needed to replace 2 other men who had just been transferred from there to the Fisher Body job. Dennis testified further that the selection of Stone and Suski was due to the fact that they were the last ones to report at Fisher and to the fact that he needed a good electrician (Suski) and "very sorely" needed a welder (Stone) on the AC Spark Plug job. Dennis denied that Snedden, or any other representative of the Union, had requested, instructed, or demanded that he remove Stone and Suski from the Fisher Body job, but admitted that Peters informed him that they did not have referrals for that job. Dennis denied that he made any reference to the Union in talking with Stone and Suski on the job, and denied specifically the statements which they had attributed to him. The conflict between Dennis' testimony and that of Stone and Suski presents the only substantial factual issue in the case, albeit a crucial one, for if the Stone-Suski 2 It was stipulated that Stone and Suski were members of the Union in good standing and that they and one James Ernest were the only employees hired by the Company for the Fisher Body job without ieferials from the Union Ernest, however, never reported for work HALL ELECTRIC COMPANY 77 version is credited, it establishes that their removal from the Fisher Body job was ,due to Dennis' desire to meet the Union's objections resulting from their lack of referrals, i. e., from their bypassing of the Union and obtaining employment direct from the Company.3 Aside from the fact that the testimony of Stone and Suski was mutually corroborative, while Dennis' version stood alone, Dennis' testimony as to his reasons for removing Stone and Suski from the Fisher Body job was overborne by other undisputed evidence. Thus, employment at the Fisher Body job expanded rapidly from November 2 through November 12, as shown by the following stipulated tabulation of the Fisher Body employment complement: November 2_________________________ 10 employees November 3_________________________ 36 employees November 4_________________________ 46 employees November 5_________________________ 54 employees November 6_________________________ 56 employees November 12_________________________ 96 employees (peak reached) November 13_________________________ 25 employees laid off November 23_________________________ 30 employees laid off That hiring was proceeding apace on November 3, was also disclosed by Suski's undenied testimony that Linn and Elsie were hired on the job after he and Stone reported there. Further evidence that the job was undermanned was supplied by stipulation, which showed that excessive amounts of overtime were required during the first 3 weeks the job was in process. Thus, during the week ending November 8, approximately 30 hours of overtime were worked per employee (in excess of 40 hours regular time); in the week ending November 15, 42 such overtime hours were worked; and in the week ending November 22, 35 overtime hours were worked. As for the AC Spark Plug job, there was no denial of Stone's and Suski's testimony that Stone did no welding there for 4 days, and that he spent in the aggregate not more than 25 percent of his time doing welding. Furthermore, it was questionable from Dennis' testimony whether he was in fact aware that Stone was a welder at ,the time. Though Stone had noted on his application that he was a welder, Dennis admitted that he had not looked at the application, and that he assumed that Stone, like Suski, was a journeyman electrician. Thus the evidence as a whole refutes Dennis' explanations that there was a surplus of labor at the Fisher Body job,4 that Suski and Stone were the last to report on the morning of November 3, and that he was "very sorely" in need of a welder on the AC Spark Plug job. They were explanations which obviously "has been contrived after the controversy had arisen." Cf. N. L. R. B. v. E. C. Brown Co., 184 F. 2d 829, 832 (C. A. 2), enfg. 81 NLRB 140. Dennis' testimony, having been found unreliable in the foregoing respects, is to be accorded little weight (cf. N. L. R. B. v. Pittsburgh S. S. Co., 337 U. S. 656, 659) in refuting the mutually corroborative testimony of Suski and Stone, which is credited. The Fisher Body job was completed on November 28. Stone was employed at the AC Spark Plug job until December 4, and Suski's employment continued until the completion of that project on January 8, 1954. Comparative tables of over- time showed that Stone and Suski each worked a total of 16 hours overtime during the entire course of their employment at the AC Spark Plug job whereas each em- ployee on the Fisher Body job worked a total of approximately 108 overtime hours. Pertinent to the question whether the Union used the referral requirement to coerce compliance with obligations of membership was the following undenied testimony: Roy Woodworth testified that he applied to the union hall on November 2, for a referral to the Fisher Body project and that Snedden informed him he would first have to pay not only his regular back dues, but also his back working assessment of $2 a week which had been charged to all union members who had worked on con- struction jobs under union referrals for the past 20 months. Suski testified that he knew that a referral from the Union was necessary for the Fisher Body job, and that he applied direct to the Company to avoid the requirement by the Union that he pay his back dues and assessments, payment of the latter being a condition to acceptance 3 Peters' testimony showed plainly that what precipitated Dennis' visit to the job site was Peters' report to Phillips that Stone and Suski did not have referrals, Phillips' re- action to that report, and his telephone call to the Company's office. Peters testified that he also reported to Snedden that the men had come to the job without referrals, and that Snedden commented, "That's too bad " S Dennis' testimony, at one point, that there was no work for Stone and Suski on the Fisher Body job when lie transferred them is incredible under all the circumstances. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the former. Stone testified that after being laid off at the AC Spark Plug job he applied to the union hall for employment and was informed by Snedden that he would have to pay up both his regular dues and his back assessments both at Saginaw (Local 558, IBEW) and at Flint before he could receive a referral from the Union. Stone made satisfactory arrangements to liquidate his obligations and on December 12, Snedden issued to him a referral for employment. Pertinent to Respondents' claim that the transfer did not constitute discrimination were the following facts: Stone and Suski made no request to remain at the Fisher Body job, expressed no preference for a job there, made no objection or protest to the transfer to the AC Spark Plug job, and voluntarily accepted the transfer . The rates on the two jobs were identical , as was the work involved , and there was no showing that, as of the time of the transfer, any party was aware, or contemplated , that the Fisher Body job would require or be productive of more overtime work,5 or that employment on the AC Spark Plug job was less desirable for any reason. C. Concluding findings The foregoing evidence establishes plainly that the Company removed Stone and' Suski from the Fisher Body job and transferred them to the AC Spark Plug job because of the Union's objections, expressed through Peters, that the men had failed to obtain referrals from the Union . Thus the Company treated the men differently to its other employees upon the instigation of the Union (cf. N. L. R. B. v. Radio Offi- cers' Union of the Commercial Telegraphers Union , AFL; N. L. R. B. v. Interna- tional Brotherhood of Teamsters; N. L. R. B . v. Gaynor News Co. Inc., 347 U. S. 17, 52, decided February 1, 1954 )'. Those findings would ordinarily suffice to dispose of the controversy . However, the novel circumstances in the case present two ques- tions: ( 1) Whether the difference in treatment was such as to constitute discrimina- tion, and (2 ) whether membership in the Union was encouraged within the meaning of Section 8 (a) (3) of the Act. (1) The General Counsel's position as stated at the hearing was that the Fisher Body project was a premium job, with high overtime , which was reserved for em- ployees with referrals from the Union, and that Stone and Suski , being without such referrals, were transferred to less desirable and less paying jobs at the AC Spark Plug project. The difficulty lies not with that theory, however, but in the fact that the General Counsel failed to prove that the Fisher Body job was more desirable in any respect as of the time of the transfer or that the men preferred it for any reason. As previously observed, there was no evidence that any of the parties (Employer, Union, or employees ) was either aware or contemplated that the Fisher Body job would yield more overtime work and pay or that there was any aspect of the job which rendered employment there more desirable. Nor, aside from desirability, did either Stone or Suski express a preference for the job or its site . Cf. N. L R. B v South- eastern Pipe Line Co., 210 F. 2d 643 (C. A. 5). Within the contemplation of the parties, then, so far as the record shows, the AC Spark Plug job constituted substantially equivalent employment ,6 which Stone and Suski voluntarily accepted . But the offer of a substantially equivalent job, or even of a better one, does not gainsay a difference in treatment-the men were given one job, rather than another. Though the word discriminate connotes especially an unfair or injurious distinction in treatment, its common meaning includes making a difference of any kind in the treatment or favor of one as compared with others. G Despite the double time rate, the very extent of overtime which was ultimately re- quired on the Fisher Body job was a circumstance which might well have rendered em- ployment there less desirable , rather than more so Thus, the total hours worked per employee for 3 successive weeks were 70, 82 , and 77, respectively . The labor movement has long been concerned with the elimination of such excessive hours of work ; and Fed. eral statutes have similarly sought to eliminate or to discourage them See e . g., Fair Labor Standards Act of 1938 , 52 Stat 1060, as amended , 63 Stat 910 ; Walsh-Healey Public Contracts Act, 49 Stat. 2036. Viewed again via hindsight, the opportunities for a longer period of employment on the AC Spark Plug job was a circumstance which might have rendered it more desirable e Though under other circumstances an inference might be drawn that the Fisher Body job was considered more desirable from the fact that the Union enforced there a referral requirement while apparently waiving it at the AC Spark Plug job, such an inference can- not be here indulged in the light of Stone's and Suski's failure to object, or to express a preference , and their voluntary acceptance of the other job. HALL ELECTRIC COMPANY 79 Plainly, therefore, the removal of Stone and Suski from the Fisher Body job and their transfer to the AC Spark Plug job constituted discrimination against them within the meaning of Section 8 (a) (3). (2) The Supreme Court has now definitively settled the point that questions of encouragement of union membership under Section 8 (a) (3) of the Act are to be determined by the same rules which are applicable to discouragement , N. L. R. B. v. Radio Officers' Union, supra, and that the "membership" which may not lawfully be encouraged under that section includes adherence to the union , the performance of membership obligations, and conformance to union practices . In the Radio Offi- cers' and Teamsters cases the affected employees were members of the respective unions involved, and in Radio Officers', the member had, as here, obtained employ- ment directly from the employer , without seeking and obtaining clearance from the union . The Supreme Court observed that the purposes of the union respondents in those two cases in causing discrimination "clearly were to encourage members to perform obligations or supposed obligations of membership ," and that (347 U. S. 17, 52): Obviously, the unions would not have invoked such a sanction had they not con- sidered it an effective method of coercing compliance with union obligations or practices. . . . Since encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of the union, [the] employers must be presumed to have intended such encouragement. The Court's holding also constitutes a definitive rejection of contentions previously advanced in many cases, including the two Del Webb cases on which Respondents strongly rely,7 that no encouragement of union membership can be demonstrated where the employees. affected by the alleged discrimination are themselves union members. There remains the question whether the Union itself invoked the sanction which the Company applied. Although Dennis' statements to Stone and Suski as herein found are conclusive insofar as the Company is concerned,8 there is no direct evidence which traces to the Union an express invocation of the sanction. Yet the only rea- sonable conclusion to be drawn from the evidence as a whole is that it was at the Union's instigation that the men were removed from the Fisher Body job. The stage was set and the machinery created by the provisions of the contract and of the bylaws 9 referred to in section A, supra, which restricted employment to IBEW members. By the requirement that foremen were also to be IBEW members, by reservation of the right to discipline members, and by delegation to the business agent of authority to remove members from a job for failure to comply with union rules the Union was obviously empowered to enforce, simply and expeditiously, the condi- tions it imposed on employment. Cf. South Texas Chapter, AGC, etc., 107 NLRB 965; The Lummus Company, 101 NLRB 1628, 1629, et seq., enfd. 210 F. 2d 377 (C. A. 5). It was by those means that the Union was enabled to implement its requirement of referrals on the Fisher Body job. In the setting here presented, it sufficed for Peters (who was agent both for Snedden and the Union) to raise with TN. L. R. B v Del E Webb Construction Co., 196 F 2d 702 (C. A. 8) ; Del E. Webb Construction Co. V. N. L R B, 196 F 2d 841 (C. A. 8), which were argued simultane- ously with the Teamsters case, 196 F. 2d 1 (C. A. 8). The factual situation in the first Del Webb case resembles the present case in no significant aspect The second was ren- dered inapposite to the present situation because of the court's finding, as the decisive factor in the case, that the complainants there had not in fact sought employment from the Company. 8 Whatever the Company's rights and prerogatives were generally in the hire and placement of employees, the evidence showed plainly that it surrendered on the morning of November 3 to the Union's requirement that employees could work on the Fisher Body job only on referrals from the Union. Cf. Pinkerton's National Detective Agency, 90 NLRB 205, 207-8; Thomas Rigging Company, 102 NLRB 65, 66-8; Utah Construction Co., 95 NLRB 196, 199; George D Auchter Co., 102 NLRB 881, enfd. 209 F. 2d 273 (C A.5). 6 The evidence fails to support Respondents' contention that the bylaws-had been sus- pended or repealed by the taking over of the Local's affairs in May 1952, by M. J. Boyle and Kenneth Favell on the authorization of the International president. Ruling was reserved at the hearing on four letters which bore on those matters; they are relevant, however, only as cumulative evidence of the fact that the Union was so taken over, and are now received for that limited purpose. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips the point that Stone and Suski had not been cleared by the Union, and to. repeat the point upon Dennis' arrival on the job. In view of the discriminatory conditions of employment which the Union and the Company had together created on the Fisher Body job, the complainants were not required, as the Respondents contend, to seek referrals from the Union in order to hold the Union responsible for the normal consequences of its acts. Permanente Steamship Corporation, 107 NLRB 1111. Respondents also argued orally that it was necessary for Stone and Suski to have exhausted all remedies provided for in the IBEW constitution and the bylaws of the Local before proceeding with charges under the Act. Such defenses have been con- sistently rejected on the ground that the Board's power to prevent unfair labor prac- tices is not affected by any other means of adjustment or prevention, whether estab- lished by agreement, by law, or otherwise. Section 10 (a); Columbus Iron Works Company, 107 NLRB 1354, and cases there cited; cf. Wertheimer Stores Corp., 107 NLRB 1434. It is therefore concluded and found on the evidence as a whole that Respondent Company, by requiring referrals from the Union as a condition of employment on the Fisher Body job and by transferring George Suski and John R. Stone from said job to the AC Spark Plug job because said employees had not been referred by the Union, assisted and contributed support to the Union (cf. Pacific Intermountain Express Company, 107 NLRB 837, and cases there cited at footnote 12; Ebasco Serv- ices Incorporated, 107 NLRB 617) and discriminated in regard to the hire and tenure of employment of employees to encourage membership in the Union, and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (2), (3), and (1). It is further found that Respondent Union and William Snedden, its business agent, by causing or attempting to cause the Company to discriminate as aforesaid, engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A).'° Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By requiring referrals by or clearance from the Union as a condition of em- ployment on the Fisher Body project, and by transferring Suski and Stone from said job to the AC Spark Plug job because said employees had not been referred by the Union, Respondent Company assisted and contributed support to the Union and dis- criminated among employees to encourage membership in the Union, and thereby engaged in untair labor practices within the meaning of Section 8 (a) (2), (3), and (I) of the Act. 3. By causing and attempting to cause the Company to discriminate against John R. Stone and George Suski in violation of Section 8 (a) (3) of the Act, Respondent Union engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operations of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY It having been found that Respondents engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and that they take affirmative ac- tion designed to effectuate the policies of the Act, as outlined under the following section hereof. The usual recommendation for back pay is omitted because of the offer and acceptance of substantially equivalent employment by the Charging Parties. [Recommendations omitted from publication.] 10 The findings of unfair labor practices are confined to the allegations of the com- plaint. The General Counsel relied upon the provisions of the contract and bylaws only to establish the means by which the Union implemented its requirement of referrals on the Fisher Body job.