The Columbus Show Case Co.

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valid.4 We shall, therefore, set aside the election and direct that a new election be conducted. [The Board set aside the election.] [Text of Second Direction of Election omitted from publication.] 4 Aihed Electric Products, Inc., supra; Tube Reducing Corporation, 110 NLRB 1080; Bachmann Umbrsdge Worsted Corporation ( Uxbridge Mill ), 110 NLRB 1195. See also The Wilmington Casting Company, 110 NLRB 2114, wherein the employer and the union cir- culated separate altered ballots, and the Board, in setting aside the election , held that the wrongful conduct of one party did not neutralize the other party's interference with the employees' freedom of choice. THE COLUMBUS SHOW CASE COMPANY and M. L. GLASS LOCAL 1423, UNrrED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL and M. L. GLASS. Cases Nos. 39-CA-319 and 39-CB-46. January 14,1955 Decision and Order On August 6, 1954, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Company and the Re- spondent Union filed exceptions to the Intermediate Report.' 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 the cases and hereby adopts the findings,z conclusions, and recommendations of the Trial Examiner with the following modification. i The Respondent Union also requested oral argument . In our opinion , the record and the exceptions fully present the issues and the positions of the parties , Accordingly, the request is denied a Contrary to the Respondent Union's contention, we find that the Employer's total business in the sale and installation of store fixtures , and not the value of the Corpus Christi installation alone, determines whether the Employer is engaged in interstate com- merce. International Association of Heat and Frost Insulators and Asbestos Workers, Local Ano. 7, AFL, 92 NLRB 753, 758. The Charging Party, M. L. Glass , filed charges against the Respondent Union and the Respondent Employer on February 26 and March 4, 1953, respectively , covering the alleged discriminatory treatment against himself. On March 30, 1953, he filed amended charges listing Hale and Adams as additional discriminatees . The incidents upon which the complaint was based occurred on September 29 and 30, 1952, and involved Hale and Adams as well as Glass. They occurred within the 6-month period antedating Glass' orig- inal charges. Without relying on the rationale of Cathey Lumber Company, 86 NLRB 157, cited by the Trial Examiner in sustaining the timeliness of the charge , we find that the 111 NLRB No. 33. THE COLUMBUS SHOW CASE COMPANY 207 The Trial Examiner found that the Respondent Company and the Respondent Union had independently violated Section 8 (a) (1) and 8 (b) (1) (A), respectively, by various statements to the effect that the discriminatees could not work on the Corpus Christi job because of the Respondent Union's opposition . We do not adopt the Trial Examiner's findings with respect to them, because the complaint did not allege that the Respondents had committed independent viola- tions of Section 8 (a) (1) and 8 (b) (1) (A).3 Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that : I. Respondent Company, The Columbus Show Case Company, Columbus, Ohio, its officers, agents, successors, and assigns, shall: A. Cease and desist from : (1) Encouraging membership in Local 1423, United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization, by discharging employees or refusing to hire applicants for employment because they have not obtained clearances or job re- ferrals from the Respondent Union, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (2) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive 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. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Upon request, make available to the Board or its agents for examination and copying, all payroll and other records necessary to analyze and compute the amounts of back pay due under the terms of this Order : amended charges are related to the original charges, arising out of the same event. The allegations of discrimination against Hale and Adams were therefore properly included in the complaint . N L R B v United States Gypsum Company, 206 F 2d 410 (C. A. 5) ; Southern Furniture Mfg Co v N. L. R. B., 194 F. 2d 59 (C. A 5 ). Cf. Knickerbocker Manufacturing Company, Inc , 109 NLRB 1195. 8 See I. F Sales Company, 82 NLRB 137, at p 138 (footnote 6). 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Post copies of the notice attached hereto and marked "Ap- pendix A" 4 at all sites, if any, within the territorial jurisdiction of the Respondent Union, where it is now engaged in installation work. Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by a representa- tive of Respondent Company, be posted by it immediately upon re- ceipt thereof, and maintained by it for a period of sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees and applicants for employment are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply therewith. II. Respondent Union, Local 1423, United Brotherhood of Carpen- ters and Joiners of America, AFL, its officers, representatives, agents, successors, and assigns, shall : A. Cease and desist from : (1) Causing or attempting to cause The Columbus Show Case Com- pany, its officers, agents, successors, or assigns, to discriminate against Millard L. Glass, James T. Adams, Jr., Dewey D. Hale, or any other employee or applicant for employment in violation of Section 8 (a) (3) of the Act. (2) In any other manner restraining or coercing employees of, or applicants for employment with, The Columbus Show Case Company, its successors or assigns, in the exercise of their right to engage in, or to refrain from engaging in, any or all of the concerted activities spec- ified in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Notify The Columbus Show Case Company in writing that it has no objection to the hiring and employment by the Company of Mil- lard L. Glass, James T. Adams, Jr., Dewey D. Hale, or any other per- son, without prior or subsequent clearance or job referral from it. (2) Mail copies of the above notification to Millard L. Glass, James T. Adams, Jr., and Dewey D. Hale. (3) Post at its business office and meeting hall in Corpus Christi, Texas, and all other places where notices to its members are customarily A In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." THE COLUMBUS SHOW CASE COMPANY 209 posted, copies of the notice attached hereto and marked"AppendixB." 5 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the representative of Respondent Union, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter. Rea- sonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (4) Mail to the Regional Director for the Sixteenth Region, signed copies of the notice attached hereto as Appendix B for posting, the Company willing, at all its projects, if any, within the territorial juris- diction of Respondent Union, in places where notices to employees and applicants for employment are customarily posted. (5) Notify the Regional Director for the Sixteenth Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. III. The Respondents, The Columbus Show Case Company, its offi- cers, agents, successors, and assigns, and Local 1423, United Brother- hood of Carpenters and Joiners of America, AFL, its officers, represent- atives, agents, successors, and assigns, shall jointly and severally make whole Millard L. Glass, James T. Adams, Jr., and Dewey D. Hale, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay each of them may have suffered as a result of the discrimination against him. MEMBER RODGERS took no part in the consideration of the above Deci- sion and Order. 5 See footnote 4, supra Appendix A NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 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 our employees and appli- cants for employment that : WE WILL NOT encourage membership in Local 1423, United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization, by discharging employees or refus- ing to hire applicants for employment, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT inform our employees that they may continue to work for us, or inform applicants for employment that they will be employed by us, only if they secure clearance or a job referral from the above-named Union. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of the right to self-organization , to form, join , or assist labor organizations , to bargain 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 pro- tection and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL make whole Millard L. Glass, James T. Adams, Jr., and Dewey D. Hale for any loss of pay each may have suffered as a result of our discrimination against him. THE COLUMBUS SHOW CASE COMPANY, F. mplo yer. 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 LOCAL 1423, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF1 AND APPLICANTS FOR EMPLOYMENT WITH, THE COLUMBUS SHOW CASE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause The Columbus Show Case Company, its officers, agents, successors, or assigns, to dis- criminate against Millard L. Glass, James T. Adams, Jr., Dewey D. Hale, or any other employee of, or applicant for employment with, said Company, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with, The Columbus Show Case Company, its successors or assigns, in the exercise of their right to engage in, or to refrain from engaging in, any or all of the concerted activities specified in Section 7 of the Act, 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. THE COLUMBUS SHOW CASE COMPANY Y ;211 WE WILL notify The Columbus Show Case Company in writing, and furnish copies of such notification to the respective persons named below, that we have no objection to their hiring and em- ployment without prior or subsequent clearance or job referral by us, or the hiring and employment of any other person without our clearance, by said Company, on any project operated by said Company within our territorial jurisdiction : Millard L. Glass James T. Adams, Jr. Dewey D. Hale WE WILL make whole the above-named persons for any loss of pay they may have suffered as a result of the discrimination against them. LOCAL 1423, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization. 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 STATEMENT OF THE CASE Upon charges and amended charges filed by M. L. Glass, an individual, the Gen- eral Counsel of the National Labor Relations Board (herein called General Coun- sel and the Board) issued a consolidated complaint on July 13, 1953, against Re- spondent The Columbus Show Case Company, herein called the Company, and Respondent Local 1423, United Brotherhood of Carpenters and Joiners of America, AFL, herein called the Union.' As amended at the hearing, the complaints alleged that the Company on or about September 29, 1952, discharged or refused to hire J. T. Adams, and on or about September 30, 1952, discharged or refused to hire M. L. Glass and D. Hale,2 and failed to reinstate said employees, because they were not members of and had not been "cleared" by the Union, and/or had engaged in or refused to engage in concerted activities, and/or for reasons other than their failure to tender periodic dues and initiation fees uniformly required by the Union, in vio- lation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and that on the dates aforesaid the Union caused or attempted to cause the Company to discharge or refuse to hire said employees and refuse to reinstate them for the same reasons, in violation of Section 8 (b) (1) (A) and (2) of the Act. Copies of the charges, amended charges, con- solidated complaints, and order of consolidation were duly served on Respondents, who in turn filed answers denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held on October 26, 27, and 28, 1953, in Fort Worth, Texas, before the duly designated Trial Examiner, in which all parties par- ticipated, were represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to file briefs and present oral argument. Motions of General Coun- i Wherever the parent United Brotherhood of Carpenters and Joiners of America is mentioned separately, it will be called the Brotherhood 2 The employees' full names are James T. Adams, Jr., Millard L Glass, and Dewey D. Hale. 344056- -55-vol 111-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set at the outset to amend the consolidated complaints were granted over objection; motions of the Respondents to dismiss the amended complaints for lack of timely filing and service of amended charges relating to Adams and Hale, and for particu- lars as to portions of the amended complaints, were denied. At the close of General Counsel's case, Respondents' motions to dismiss the consolidated complaints on various grounds were denied. Respondents introduced no evidence, but rested their case on General Counsel's proof, and at the close of the case renewed their motions to dismiss on grounds previously stated and for other reasons. Those mo- tions are disposed of by the findings made and conclusions reached in this report. All parties waived oral argument, but filed briefs with the Trial Examiner; the Union filed a reply brief under authority granted by the Chief Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Company is an Ohio corporation engaged in the business of installation of stores fixtures. In the 12-month period preceding the filing of the complaints here- in, it purchased materials valued in excess of $750,000 which were shipped directly to its principal place of business in Columbus, Ohio, from points outside the State. In the same period it sold products valued in excess of $750,000 which were shipped from its principal place of business in Ohio directly to points outside the State. I find that the Company is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Local 1423, United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, which admits to membership employees of the Company. Ill. THE UNFAIR LABOR PRACTICES During the last 6 months of 1952 the Company was engaged in the installation of fixtures in stores of Fedway Stores Corporation in Wichita Falls and Corpus Christi, Texas, under contract with the latter corporation. The installation in each city was a separate and distinct operation. The installation in Wichita Falls started about August 27, 1952, and ended early in October; the work in Corpus Christi started the latter part of September 1952, and ended about the middle of October. In the early part of September 1952, Glass, Adams, and Hale were employed by the Company as carpenters for the installation of store fixtures at the Wichita Falls job. They worked on that job until its completion on September 26, 1952. Each was hired by and worked under the supervision of Harold A. Ritter, the foreman on the job. During the employment, the three were members in good standing of the Wichita Falls local of the parent Brotherhood. In the week or so before the com- pletion date, Foreman Ritter and Max Teach,3 vice president of the Company who was the supervising engineer or architect on the job and gave orders both to Ritter and the carpenters, spoke to the three about working for the Company on the Corpus Christi job, complimenting them on their work in the installation of a new type of store fixture which the Company had introduced at the Wichita Falls job, and stating he would like to have the three work at Corpus Christi, because they were familiar with the new fixtures and it would save the Company money to use their services there and thus avoid breaking in a new crew. The three told Ritter and Teach before September 26 that they would go to the Corpus Christi job. Late Friday night, September 26, as the carpenters were putting the finishing touches on the job, Teach and the president of the Company (identified in the record only as Carl) were present, and Teach called for the names of those who had decided to go to Corpus Christi Glass, Adams, Hale, and another carpenter, Young, gave him their names, which he wrote down in a notebook, and Teach and the president then told them they would like to have them start work on the Corpus job Sunday morning if they could get there. Glass replied that they could not go to work Sunday, as it was necessary for union members to clear in to the Corpus Christi local of the Brotherhood before going to work, and as the union offices were not open on Sunday, they could not clear in and start work until Monday morning at the earliest. Glass stated that he had personal business to handle on Monday, and would report to the job on Tuesday. Teach and the president said that was satisfactory, and that 8 He is also called "Teitz" in the record. THE COLUMBUS SHOW CASE COMPANY 213 the men should get to Corpus Christi as soon as they could, clear in with the Union and come to work. When the president, Carl, paid Glass off that night, he told him he was glad to have him work at Corpus Christi, and Glass repeated he would get there as quick as he could. Adams and Young said they would be at the job on Monday. Adams and Young drove to Corpus Christi over the weekend, arriving in town Sunday night. They reported to the Fedway job in. Corpus Christi at the usual starting time, 8 a. m., Monday morning, September 29, with their work clothes and tools, ready to go to work. At the site, they met Teach and the president of the Company who introduced them to Brannon, one of the foremen on the job, and directed Brannon to take them to the union office to get them "cleared in" and bring them back to work. Brannon took them to the union headquarters where he was referred to W. C. (Shorty) Echols, business agent of the Union. Brannon told Echols he had come to have Adams and Young cleared to work on the Fedway job. Adams told Echols he and Young had just finished setting fixtures for the Company at Wichita Falls, and the Company had sent them to Corpus Christi to do the same work. Echols examined the union books of Adams and Young, and said that they were in order, and that he would clear them in to the Union if they desired, but also said that they were not going to work on the Fedway job, because the Union had men in Corpus Christi qualified for that job; he said also that he would put Adams and Young at the bottom of a list of carpenters waiting for jobs, below framers, roofers, deckers, and apprentices, and he would guarantee that they would not work on the Fedway job, might not work on the next 2 or 3, and it might be 2 or 3 months before they would work.4 Echols further told them that the Union did not like the Company's attitude because it did not have any local supervisors on the job, and that he was going to do something about that. He also said that if Adams and Young tried to go to work on that job, "they" would pull all the men off the job, the men could always "go fishing." Echols asked the three specifically if Adams and Young had entered the building on the job site, saying that if he knew for certain that they had, he would have fined them $50 apiece for soliciting work. None of the three admitted that Adams and Young had done so. Adams told Echols he had never encountered anything like this before, and Echols replied, "You have , encountered it here." Brannon then took Adams and Young back to the job site, but asked them to wait outside while he went in to report to Teach, saying he was afraid they would get fined if they went into the building. He went inside, and came out with Teach, who told Adams and Young that company officials would have a conference with the Union and try to persuade it to let them and the two other carpenters coming in work as leadmen , a nonsupervisory job. Teach said he had never run into a situa- tion like this before. Teach and the president of the Company then had a talk in a nearby restaurant with Echols and one Sorenson, an official of the Corpus Christi Building Trades Council, of which the Union was a member, following which Teach told Adams and Young that he did not believe they could convince the Union that Adams and Young should work, that the Union would not let the Company put them to work, and they did not have a chance of working on the job. Adams and Young then tried to make contact through the local Union with the headquarters of the Brotherhood but without success, and then decided to wait until Glass and Hale arrived and talk with them about the problem. Glass and Hale arrived in Corpus Christi Monday night and reported at the Fed- way job site, ready to work, at 8 a. in. Tuesday, September 30. They first talked with Adams and Young and learned about their experiences of the previous day and the Union's "first-in first-out" assignment rule. Glass then talked with Teach and said he was ready to go to work. Teach told him they had run into difficulty with the Union and did not know what they would be able to do about it, that he still wanted Glass and Hale to go to work if they could get "cleared" through the Union at Corpus Christi, and that they would have to go to the Union and straighten that out. Teach told them the Union would not permit the Company to work any out-of- town men , claiming that it had enough local men to handle the job . Glass protested to Teach that he did not see how the Union could prevent a man from going to work, and that if the Company wanted him to work for it, he thought he had a right to do so, so long as he abided by union rules. Teach repeated the Company would like him to work for it if there was any way he could, and told him to go to the Union and see what he could do. Foreman Ritter, who was working on the job, then came in and handed Glass a calling card of Rolla H . Watson, assistant business agent of the 4 The Union's practice of sending out men to jobs in the order in which they are placed on the waiting list was desciibed by the Union 's counsel as the "first-in first-out" rule, and will be so designated in this report. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, with the name of Sorenson written on it in pencil , and told Glass that Soren- son might be of some help to him . While they were talking , Foreman Brannon came up and advised Ritter not to talk to Glass, saying the Union would fine Glass $50 for even being in the building. Glass and Hale then went to the Union's office where they saw a man named Ger- ald W. Perry, standing behind a wicket window in the office .5 Glass showed his union book to Perry and said he wanted to "clear in." Perry told him his book was in order and asked where he intended to work. Glass said he already had a job at the Fedway operation. Perry then said he would clear Glass in if he desired, but Glass was not going to work on that job, as "we have a waiting list here and your name will go to the bottom of that list" which contained rough framers, apprentice carpenters, finish carpenters, and anyone carrying a card in the Corpus Christi local. Glass asked Perry if he would place apprentices at work ahead of journeymen car- penters on high-priced fixtures, and Perry said he would, and that the Fedway job and several others would be finished before Glass went to work because all the names above him on the list would be called before his. Glass said he could not see it that way, that he was not used to that method of getting employment, and had never en- countered it before. He did not ask Perry to put him on the list, as he said he felt it did not apply to him where he already had a job. Hale did not attempt to "clear in" or be put on the list. Perry also told Glass that "if the company insists on putting even one of you all to work, I will pull every man off the job." Glass replied that he thought there was such a thing as the Taft-Hartley Labor Act, and Perry said "Yes, but you ain't got the nerve to use it, because you are a union man and carry a union card." Glass said he thought he had a constitutional right to go to work if he had a job, and Perry replied, "that is the way it is," and repeated that if the company put even one of "you men" to work, "we would call every man off the job." Glass then asked to see Echols, but Perry told him the latter was out. Glass and Hale returned to the job site and spoke to the president of the Company, Teach, and Ritter about their talk with Perry. The president said he had never ex- perienced this situation before. Glass indicated that he and the other 2 carpenters wanted to work on the job, and the 3 officials told him they would be glad to have them work if they could "clear" with the Union so that the Union would not bring pressure on the Company, and that they did not know how they could go to work otherwise. Ritter told Glass he had had trouble going to work on the job himself, as the Union did not want him to work, claiming they had foremen in Corpus Christi who were qualified to do his job. At the moment Ritter was supervising the installa- tion of fixtures on one floor of the site, and remarked to Glass that the carpenters working for him were slow and not "getting on to" the work, and that Glass and his companions should do their best to "get this thing straightened out where you can go to work," because they could turn out more work than he was then getting. That afternoon, Glass and Adams had a talk with Sorenson, of the Building Trades Council, in which they explained why the Union would not let them go to work, and its threat to pull the men off the job if they worked, and asked for his help. Glass told him that he already had a job with the Company, otherwise he would be satis- fied to go to the bottom of the Union's waiting list. Sorenson told him that was the Union's policy and he could do nothing about it, that he was not the man to see. Glass said the policy was not in keeping with union procedure and violated his con- stitutional rights. Sorenson told him if he did not like it , he could do as the sign in Texarkana said, i. e., get out of Texas. Later that afternoon, Glass, Adams, and Hale left town without working on the Fedway job. The above findings are based on uncontradicted and credited testimony of Glass, Adams, and Hale, stipulated facts, and documentary evidence. The Union argues that portions of Adams' testimony should be rejected as incredible because of his inability clearly to identify Echols though the man sat before him at the hearing, and because of documentary facts in the record which, it claims, show the Corpus Christi job was fully manned when the three carpenters got there and tend to discredit their claim of a prior contract for employment there. This argument is without merit. Where neither Respondent adduced any testimony to controvert that of the General Counsel's witnesses, but based their final motions to dismiss solely on General Coun- sel's proof, I must accept as true and consider all facts proven by the uncontradicted 5 Perry's exact title or position with the Union is not stated in the record However, he sat with union counsel and Business Agent Echols during the hearing, and was pointed out by Glass as the person to whom he had talked. From his remarks to Glass, which 'were similar to those of Echols to Adams the day before, Glass and Hale had good reason to believe that he was speaking for the Union I find from all of the facts that Perry had apparent authority to speak for the Union See Painters District Council No. 6, etc., 97 NLRB 654, 664 THE COLUMBUS SHOW CASE COMPANY 215 testimony of General Counsel's witnesses, together with all reasonable and legitimate inferences therefrom; and where the testimony permits of conflicting inferences, those most favorable to the General Counsel 's case must be drawn.6 Concluding Findings It is clear from the facts found above that the Company and the three carpenters had reached an agreement on or before September 26, 1952, for the continued em- ployment of the three on the Corpus Christi job , that in accordance with the agree- ment Adams presented himself on September 29 and Glass and Hale presented them- selves on the 30th, at that job ready to go to work, and that the Company refused to let them start work on the dates they reported , because they failed to secure prior "clearance" from the Union. Whether the arrangement was a continuation of their prior employment at Wichita Falls, or a new employment at Corpus Christi, is im- material; the salient fact is that the Company refused to let them work at Corpus Christi for the reasons stated. The Company knew that their failure to secure clear- ance was due to the Union's referral priority , or "first-in first-out," policy of assign- ing local carpenters on its waiting list to jobs. It is thus clear that the Company dis- criminated against them in regard to their hire or tenure of employment because they were denied clearance for a reason which it knew to be other than their failure to tender proper periodic dues or initiation fees required for acquisition of or retention of membership in the Union . It took this stand only after its foreman had endeavored to secure clearance from the Union on the 29th for Adams and Young and had been met with the threat that if the Company employed them, the Union would cause a strike by pulling every man off the job. It maintained this stand on the 30th after Glass and Hale had been similarly rebuffed by the Union and denied clearance , despite the fact that the three had indicated their desire to work for the Company notwith- standing the Union's policy. The reason for the Company 's refusal to allow them to work without clearance was its stated desire to avoid the economic pressure threat- ened by the Union. The Company made it clear to them on the 30th that it would be glad to let them work provided they could secure clearance in some way, and it is obvious that, but for the Union's refusal to clear them due to its referral priority policy, the Company would have permitted them to work. As the Company knew of this policy, its refusal to let them work without clearance after the threat by the Union was an acquiescence in the Union's application of that policy to them as a condition precedent to referral or clearance , and in effect a recognition of that policy as a condition of their employment . The Company thus permitted the Union to de- termine under its own rules what carpenters would be allowed to work on the job. There was no valid union-security agreement in existence which might have afforded the Company and the Union a valid basis for the Company 's conduct . Under these circumstances, it is clear, and I find, that the Company, by refusing employment to Glass, Adams, and Hale on the Corpus Christi job, has engaged in unfair labor prac- tices within the meaning of Section 8 (a) (1) and ( 3) of the Act. As the Union threatened the Company with a strike if it employed Adams, at the same time that it denied him clearance under its priority referral policy, and the Company con- sequently refused to permit the three carpenters to work unless and until they secured clearance, in order to avoid economic pressure from the Union , it is likewise clear, and I find, that the Union thereby attempted to and did cause the Company to dis- criminate against the three in violation of Section 8 (a) (3) of the Act, and that the Union thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Ameri- can Pipe and Steel Corporation, 93 NLRB 54, 56; Radio Officers' Union of the Commercial Telegraphers Union, AFL, 93 NLRB 1523, 1527, enfd 196 F. 2d 960 (C. A. 2), affd. 347 U. S. 17, Engineers Limited Pipeline Company, 95 NLRB 176. The Company argues that the three carpenters sought employment at Corpus Christi only as "union men ," and did not intend to work there on any other basis, that their decision to "clear in" with the Union before going to work was a self-im- posed condition precedent to working, and that when they failed to obtain such clear- ance, there was no employment in existence nor any offer by them to work without such clearance, ergo there could be no discharge or refusal to hire by the Company. ON. L R B. v. Ray Smith Transport Co, 193 F 2d 142 (C. A 5). The Corpus Christi carpenter payroll , relied on by the Union , shows that the Company hired 9 carpenters on the 29th , 3 on the 30th , and 2 on later dates These facts tend to indicate that the job was far from fully manned on the 29th and 30th . and that there must have been work for Adams and Young when they arrived on the 29th , and for Glass and Hale when they came on the 30th , and tend to support rather than negate the testimony of Glass, et al., that the Company wanted them to work both days. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This argument might have merit if Glass and his companions had accepted the Union's `-'first-in first-out" policy when first stated to him, and returned to Wichita Falls with- out further ado. But the record shows they did the opposite: they balked at that policy, considered it unfair to them, returned to the job site and sought the help of the Company and a Building Trades Council official in overcoming the Union's posi- tion, and on the 30th definitely indicated that they desired to work in spite of the Union's referral policy. Glass' remarks to the company officials on the 30th make it clear that all three still desired to carry out the employment agreement made earlier with the Company, notwithstanding that they could not obtain clearance because of that policy. Thus, although it can be argued that Glass at the last moment in Wichita Falls had engrafted on their agreement for continued employment in Corpus Christi an additional condition that they must first "clear in" with the Union there, it is clear that on the 30th the three had withdrawn that condition when they indicated that they wanted to, and felt they had a right to, work in spite of the Union's policy and refusal of clearance. It was at that point that the Company, knowing the Union would call a strike if it employed any of them without clearance, itself imposed the condition of prior clearance when it insisted that they must straighten themselves out with the Union, and in effect get a clearance from it, before they could work. In these cir- cumstances, the Company's refusal to let them work amounted to a discharge, assum- ing the prior arrangement was for a continuation of their employment in Corpus Christi, or a refusal to hire, or withdrawal of an offer of hire, if it be considered merely as an offer of new employment there; from either point of view, the Com- pany's refusal to allow them to work without clearance was an illegal discrimination in violation of the Act. Although the three indicated in their testimony that they had no intention of working in Corpus Christi other than as "union men," I con- sider this testimony immaterial in the light of their conduct found above which clearly indicated their desire to work notwithstanding the Union's priority referral policy. If this amounted to an attempt to work as "non-union" carpenters, as the Union now intimates, such attempt affords no defense to either Respondent, for in the Radio Officers' Union case, supra, the Supreme Court held (347 U. S. 17 at 40) that "The policy of the Act is to insulate employees' jobs from their organizational rights. Thus, Sections 8 (a) (3) and 8 (b) (2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood." The Court noted that the only limitation imposed by Congress on these rights was specified in the proviso to Section 8 (a) (3) authorizing certain union-security agreements (which do not exist in this case).? • Both Respondents argue that the complaints must fall for lack of proof of any agreement, understanding, or practice between them which limited employment on the Corpus Christi job to members of the Union or persons referred or "cleared" by it. This argument is without merit. While there is no substantial proof of such agreement or understanding, the Board's decisions in the American Pipe and Steel case, supra, and in Engineers Limited Pipeline Compahy, supra, make it clear that such proof is not necessary to a finding of discrimination where, as here, the employer made it clear to the carpenters that they could not work without clearance from the Union, and in effect acquiesced in the Union's determination to prevent them from working on the job because of its referral priority policy. The Union claims that since the three carpenters were at all times union mem- bers in good standing, there can be no finding that the actions of Respondents encouraged membership in the Union. This argument is likewise untenable. A similar argument was made by the Trial Examiner in the American Pipe and Steel case as the basis for finding no violation of Section 8 (a) (3) and 8 (b) (2), and was rejected by the Board which said (93 NLRB 54 at 56) : It is well established that an employer's acceptance of the determination of a labor organization as to who shall be permitted to work for it is violative of Section 8 (a) (3) of the Act. where, as here, no lawful contractual obliga- tion for such action exists. Contrary to the implication of the Trial Examiner, neither Watson's membership in the Local, nor the Local's desire to enforce an alleged obligation of such membership, removes this case from the appli- cation of that principle. Rather, by the act of yielding to the Local' s demand that Watson be removed, the Employer perforce strengthened the position 7 The admitted fact that the three did not "clear in" to the Union after the remarks of Echols and Perry to them cannot be held against them, for these remarks showed them that such clearance would not enable them to work for the Company, their basic objective; they were not required to perform a useless act in view of the Union's policy which would deny them employment already arranged, even if they "cleared in " THE COLUMBUS SHOW CASE COMPANY 217 of the Local and forcibly demonstrated to the employees that membership in, as well as adherence to the rules of, that organization was extremely desirable. Such encouragement of union membership was particularly effective when, as in the present case, the Employer deferred to the demand of the Local that employees be cleared through its hall, and membership appears to have been a condition precedent to obtaining the necessary clearance. In the Radio Officers' Union case, supra, the Board held (93 NLRB 1523 at 1527) that "discrimination aimed at compelling obedience to union rules (in this case the job-rotation principle) encourages membership in a labor organization no less than discrimination designed to combat dual unionism," citing the American Pipe and Steel case. In its decision enforcing the Board's order, the Second Circuit Court of Appeals held as to Section 8 (a) (3) and 8 (b) (2) (196 F. 2d 920 at 965), that "refusal of clearance caused the company to discriminate against Fowler in regard to hire. Without necessary clearance it could not accept him as an em- ployee. The result was to encourage membership in the union. No threats or promises to the company were necessary. . . . Such conduct displayed to all non- members the union's power and the strong measures it was prepared to take to protect union members." In affirming the circuit court, the United States Supreme Court held that specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation of Section 8 (a) (3), that proof of certain types of discrimination satisfies the intent requirement, and that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership, relying on the common law theory that a man is held to intend the foreseeable consequences of his own acts. The Court applied this rule to the cases before it, and, in discussing the power of the Board to draw inferences of encouragement or discouragement of union membership, it said (347 U. S. 17 at 52): The circumstances in Radio Officers and Teamsters are nearly identical. In each case the employer discriminated upon the instigation of the union. The purposes of the unions in causing such discrimination clearly were to encourage members to perform obligations or supposed obligations of membership. Ob- viously, the unions would not have invoked such a sanction had they not considered it an effective method of coercing compliance with union obliga- tions or practices. Both Boston and Fowler were denied jobs by employers solely because of the unions' actions. Since encouragement of union mem- bership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union, those employers must be presumed to have intended such encouragement. It follows that it was eminently rea- sonable for the Board to infer encouragement of union membership, and the Eighth Circuit erred in holding encouragement not proved. This language is apposite to the facts at bar. The Union's "first-in first-out" job referral policy was admittedly designed to prefer and protect its own local mem- bers in job assignments as against out-of-town nonmember carpenters. Where the Union enforced that policy by a threat of strike which caused the Company to deny employment to three out-of-town carpenters, nonmembers of the Union, such conduct clearly displayed to all nonmembers the Union's power and the strong measures it was prepared to take to protect its members. The clear result was to encourage membership in the Union and compliance with its rules and policies, and at the same time to discourage both members and nonmembers from exercise of their guaranteed right to refrain from assisting it by compliance with its local rules and policies under pain of denial of employments In affirming the decision of the second circuit in the Radio Officers' Union case, the Supreme Court used the following language which is likewise apposite here (347 U. S. 17 at 42): "A fortiori, the Second Circuit correctly concluded in Radio Officers that encouragement to remain in good standing in a union is proscribed. Thus that union in causing the employer to discriminate against Fowler by denying him employment in order to coerce Fowler into following the union's desired hiring practices deprived Fowler of a protected right." The decision of the Supreme Court in the Radio Officers' Union case and the companion Teamsters case also disposes of the Union's argument against a finding of violation of Section 8 (a) (3) and 8 (b) (2) based on the opinion of the Court of Appeals for the Ninth Circuit in N. L. R. B. v. George W. Reed, 206 F. 2d 184, in which that court noted that the question of encouragement of union mem- 8 See also N. L R. B. v George W. Reed, 206 F. 2d 184 (C. A. 9). 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership was pending before the Supreme Court in the above two cases . The de- rivative argument that the facts herein "revolve around the internal affairs of a union and thus are not among the unfair labor practices condemned by Section 8 (a) (3) and 8 (b) (2) of the Act" is untenable in the light of the rejection by the second circuit in the Radio Officers' Union case, 196 F. 2d 960, 964, of the union's argument there that neither the Board nor the courts could review a union's interpretation of its own powers. Other arguments of the Union appear to be derivatives or extensions of the arguments considered and rejected above, and will not be discussed in detail. However, one procedural argument should be con- sidered in extenso. Respondents argue that the complaints should be dismissed as to Adams and Hale, because the amended charges naming them were filed and served more than 6 months after the date of the alleged discrimination against them. The original charge against the Company, naming only Glass, was filed by him March 4, 1953, and served on the Company March 9, 1953; the amended charge naming Glass, Adams, and Hale as discriminatees was filed by Glass on March 30, 1953, and served on the Company April 2, 1953. The original charge against the Union, naming only Glass, was filed February 26, 1953, and served on the Union February 27, 1953; Glass' amended charge, which added Hale and Adams, was filed March 30, 1953, and served on the Union March 31, 1953. I consider the arguments without merit. It is settled Board law, approved by the courts, that the period of limitation under Section 10 (b) of the Act is the 6 months prior to the date of filing and serv- ice of the original charge, that the complaint may lawfully enlarge upon the charge if the added unfair labor practices were committed within that period, and that this is so whether or not amended charges are filed alleging such new unfair labor prac- tices.9 As to the Company, the 6 months' period starts September 4, 1952, and as to the Union, it begins August 26, 1952. Thus, the Company's discrimination against the three carpenters, and the Union's causation thereof, which all occurred on September 29 and 30, 1952, falls well within the 6-month period. The Union argues, however, the above principles apply only in cases in which a labor organiza- tion has filed the initiating charge, not where an individual does so, and that where an individual files charges after expiration of the 6-month period involving addi- tional persons as discriminatees, without proof of authority to file on their behalf, allegations involving such persons cannot be added to the complaint or litigated be- cause the Respondents could have no reasonable expectation from the filing and service of the original charge that the charging party might file, or have authority to file, amended charges involving other similar instances of discrimination, as could reasonably be expected where a union representing many persons filed the initiating charge. This argument is without merit for various reasons. First, the cases cited above make it clear that amended charges adding new unfair labor practices are mere surplusage, and are not prerequisites to the inclusion of such unfair labor prac- tices in the complaint. Second, it is well settled that no showing of authority to make and file a charge is necessary, and the lack of proof of such authority is not ground for dismissal of a complaint as to persons other than the charging individual. Textile Machine Works, Inc., 96 NLRB 1333, 1358, 1359. Furthermore, the logical effect of the Union's argument, if valid, would be to restrict the Board, in cases where a charge is filed by an individual, to allegation and proof only of the unfair labor practices originally charged, regardless of whether its investigation disclosed any other unfair labor practices within the same period of limitation. Thus, a re- strictive rule of procedure and pleading would be imposed on the Board where charges are filed by an individual, in contrast to the liberal rules obtaining where charges are filed by a labor organization. The mere statement of such a discrimi- natory principle exposes the fallacy therein and requires its rejection , especially where applied in the enforcement of general legislation , such as this Act, which was pro- mulgated and must be enforced in the public interest. Finally, the Union cites no authorities, and I have been unable to find any, which supports its theory. I there- fore deny Respondents' motions to dismiss the complaints on this ground. I further find that the Company independently violated Section 8 (a) (1) of the Act by (1) Teach's statements to Adams and Young on September 29, that the Union would not permit the Company to put them to work, and that they did not have a chance of working on the job, (2) Teach's statements to Glass on Septem- ber 30 that he still wanted Glass and Hale to go to work if they could get "cleared" through the Union, and (3) the statements of Teach, the company president, and Foreman Ritter to Glass the same day to the effect that they would be glad to have 6 Cat hey Lumber Co., 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5) ; Jay Company, Inc., 103 NLRB 1645, 1647, 1648. THE COLUMBUS SHOW CASE COMPANY 219 him and the other two carpenters work if they could "clear" with the Union so that the Union would not bring pressure on the Company, and that they did not know how they could go to work otherwise. I also find that the Union independently vio- lated Section 8 (b) (1) (A) of the Act by (1) Business Agent Echol's statements to Adams and Young on September 29 that he would put them at the bottom of a waiting list, that he would guarantee that they would not work on the Fedway job, or the next 2 or 3, or for several months, that if they tried to work on the Fed- way job, he would pull all the men off the job, and that if he knew they had entered the job site, he would have fined them for soliciting work, and (2) union represent- ative Perry's statements to Glass on September 30 that he would not work on the Fedway job, and several others would be finished before he worked, that his name would go to the bottom of a list of local union members, waiting for work, and that if the Company put him to work, he would pull every man off the job.to IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the activities of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom, and that they take certain affirmative action designed to effectuate the policies of the Act. I have found that the Company has unlawfully discriminated against Glass, Adams, and Hale in regard to their hire and tenure of employment in violation of Section 8 (a) (3) and (1) of the Act, and that the Union unlawfully caused the Company to engage in such discrimination in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. I shall therefore recommend that the Company and the Union be ordered, jointly and severally, to make Glass, Adams, and Hale whole for any loss of pay each may have suffered as a result of the discrimination practiced against him, by payment to him of a sum equal to the amount he would normally have earned as wages on the Company's Corpus Christi Fedway operation from the date of the discrimination against him (September 29, 1952, for Adams, and September 30, 1952, for Glass and Hale) to the date when that project was completed, or the date when his services would normally have been terminated on that operation, absent discrimination, if that date be earlier, less his net earnings during such period." Back pay shall be com- puted in accordance with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. As the Corpus Christi operation was completed on or about October 14, 1952, the Company need not offer reinstatement to these men. However, as the Union clearly indicated to them and the Company that it would prevent them and other out-of-town carpenters from working on the Fedway project and similar proj- ects in Corpus Christi in the future for the protection of local men on its waiting list, I shall recommend that the Union notify the Company, sending copies to the 3 carpenters, that it has no objection to the future hiring and employment of the 3 and any other persons by the Company on existing projects and any others the Company may start within a reasonable time in the future, within the Union's territorial jurisdiction, including Corpus Christi. Cf. J. R. Cantrall Company, 96 NLRB 786; United Mine Workers of America, District 2, 96 NLRB 1389. I shall recommend that the Company make available to the Board payroll and other records to facilitate the computation of the amount of back pay due. The nature and variety of the unfair labor practices committed by the Respondents indicate a general purpose to limit the lawful rights of employees and applicants for employment, and persuade me that such practices are potentially related to simi- lar unfair labor practices, the future commission of which may be reasonably antici- pated from Respondents' past course of conduct. The preventive purposes of the Act will be thwarted unless the Board's order is coextensive with the threat. I shall therefore recommend that a broad cease and desist order issue against both Re- spondents. 10 See Mundet Cork Corporation, 96 NLRB 1143, 1150; Bechtel Corporation, 108 NLRB 1070 11 The extent of this period, in the light of the length of time worked by Glass, Adams, and Hale on the Wichita Falls job, and the amount of payroll on both jobs disclosed by the record, effectively disposes of the de minimis argument raised by the Union. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 1423, United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Millard L. Glass, James T. Adams, Jr., and Dewey D. Hale, thereby encouraging membership in a labor organization, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the above discrimination and other conduct found above, thereby interfer- ing with, restraining, and coercing employees or applicants for employment in the exercise of rights guaranteed by Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By attempting to cause and causing the Company, an employer, to discriminate against Glass, Adams, and Hale aforesaid, in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By causing the Company to discriminate as aforesaid, and by other conduct found above, thereby restraining and coercing employees or applicants for employ- ment in the exercise of rights guaranteed by Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] TED RAZOOK AND BEVERLY RAZOOK, A CO-PARTNERSHIP, D/B/A VOGUE CRAFT and INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL. Case No. f1-CA-1681. January 14, 1955 Decision and Order On April 15, 1954, Trial Examiner Maurice M. Miller issued his Intermediate Report 1 in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain un- fair labor practices alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative remedial action. Thereafter, following the Board's promulgation of its new jurisdictional policy, the General Counsel moved to dismiss the com- plaint on jurisdictional grounds. The Union filed objections thereto with a supporting statement. The Board has considered the juris- dictional issue in the case and finds merit in the General Counsel's motion that the complaint be dismissed. Respondents are engaged in the manufacture of women's wearing apparel in the State of California. The record shows that Respond- ents receive from Relax-Slax, another California firm, materials which 1 There are two Intermediate Reports. The first, dictated Into the record, was not con- sidered by the Board as an Intermediate Report for purposes of Section 102.45 of the Board's Rules and Regulations. 111 NLRB No. 32.