Jersey Contracting Corp.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Upholsterers' International Union of North America, AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Robert C. Moyer and Bruce E. Snyder, thereby discouraging membership in Upholsterers' International Union of North America, AFL, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act, and has thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. 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.] Jersey Contracting Corp. and International Longshoremen's Association, AFL and Local 976, International Longshoremen's Association, Independent, Party to the Contract Local 976, International Longshoremen's Association, Independ- ent and International Longshoremen 's Association, AFL and Jersey Contracting Corp., Party to the Contract Jersey Contracting Corp. and International Longshoremen's As- sociation, AFL Local 976, International Longshoremen's Association, Independ- ent and International Longshoremen's Association, AFL. Cases Nos. O-CA-3473, 2-CA-3553, 2-CB-10510, 2-CB-1081, 2-CA-3875, and 2-CB-1 254. May 10, 1955 DECISION AND ORDER On October 12, 1954, Trial Examiner Reeves R. Hilton issued his Intermediate Report in Cases Nos. 2-CA-3473, 2-CA-3553, 2-CB- 1052, and 2-CB-1081, finding that the Respondents, Jersey Contract- ing Corp., herein called Jersey, and Local 976, International Long- shoremen's Association, Independent, herein called Independent, 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 his Intermediate Report attached hereto. Thereafter the Charging Party, International Long- shoremen's Association, AFL, herein called AFL, filed a brief in sup- port of the Intermediate Report and Jersey, Independent, and Inter- venor Penn Industries, Inc., herein called Penn, filed exceptions to the Intermediate Report and supporting briefs. On January 13, 1955, Trial Examiner David London issued his Intermediate Report in Cases Nos. 2-CA-3875 and 2-CB-1254, finding 112 NLRB No. 92. JERSEY CONTRACTING CORP. 661 that the Respondents, Jersey Contracting Corp. and Local 976, Inter- national Longshoreman's Association, Independent, 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 his Intermediate Report attached hereto. Thereafter the General Counsel, AFL, Jersey, and Independent, filed exceptions to this Intermediate Report and supporting briefs. On January 28, 1955, the General Counsel filed with the Board, and served upon the parties, a motion requesting the Board to consolidate all the above-noted cases for the purposes of a Decision and Order and for all other purposes. The AFL joined in the General Counsel's request and the Independent and Penn opposed the General Counsel's motion. As the issues in the cases are closely related, the parties are substantially identical, and the Independent and Penn have failed to show how consolidation of the cases will prejudice them, and in order to effectuate the policies of the Act, we hereby grant the General Counsel's motion and will issue a consolidated Decision and Order. Jersey and Penn have requested oral argument. Their respective motions for oral argument are hereby denied as the records, including the exceptions and briefs, adequately present the issues and positions of the parties. The Board has reviewed the rulings of the Trial Examiners made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Reports, the exceptions and briefs, and the entire record in each case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiners with the following additions, minor cor- rections,' and modifications : The Trial Examiners found that Jersey violated Section 8 (a) (3) and (1) and Independent violated 8 (b) (2) and (1) (A) by suspend- ing Keating and Scott from their jobs. The Respondents have ex- cepted to the findings of discrimination against Keating and Scott and contend that the employees were suspended from work under the pro- visions of a lawful union-security clause. The respective written collective-bargaining contracts under which the Respondents were operating when Keating and Scott were sus- pended specifically provided that they were supplements to an agree- ment covering Jersey's employees dated August 26, 1946. The 1946 agreement contained a union-security clause clearly unlawful under the amended Act. Since August 1946 there has been no written modi- 'Trial Examiner Hilton's Inteiniedliate Report contains certain minor misstatements and iladIeitern es, none of «111(h affects the Tnal Exannnet's ultimate conclusions Accord- ingly a e note the following corrections The collective-bargaining contracts covering Penn's employees contained higher wage stiles than the contracts toi Jersey's employees tiom 1946 through 1952 The record establishes that the operations of Jersey and Penn were not materially Interdependent. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fication of the terms of that particular union-membership clause. However, the Respondents contend that in 1948 the unlawful closed- shop provision of the 1946 agreement was orally rescinded and re- placed by an oral union-security clause conforming to the statutory requisites of the amended Act. The Respondents introduced evidence which they assert supports their claim that the 1946 clause was ex- punged. This evidence consisted of testimony by Sherman, Inde- pendent's president, which summarized a conversation had in July 1948 with Heppiner, Jersey's then general manager, as follows : "While we knew the [unlawful] clause existed, inasmuch as we had not exercised it up to the present, we had no intention of exercising it at any future date." Sherman testified he stated more particularly in that conversation with Ileppiner that the Respondents "would con- tinue under the method that [they] were working under at that time, a more or less open shop." 2 The Respondents introduced other evi- dence tending to show that they did not enforce the union-security clause of the 1946 contract as written, but instead have treated job applicants and employees as though they have been operating under a union-membership clause conforming to the requirements of the amended Act. Upon consideration of the particularized evidence summarized herein, and the entire records in these cases, we fund that the Respond- ents have failed to establish that they have either rescinded or modi- fied the unlawful closed-shop clause of the 1946 agreement. Further- more, we will not accept parol evidence to establish modification of written union-security agreements.' We so rule because the obvious effect of permitting oral evidence in such circumstances would be to establish unlimited opportunity for avoiding responsible compliance with the Act. Moreover, a requirement that union-security clauses be modified in writing will not impose an undue burden on parties with a bona fide intent to change a written union-security provision. We find accordingly that the Respondents discriminated against Keating and Scott by suspending them from their jobs.4 Trial Examiner Hilton, relying upon the Board's Midwest Piping doctrine, found that Jersey violated Section 8 (a) (1), (2), and (3) "The quoted testimony was adduced at the hearing before Trial Examiner London. Trial Examiner Hilton refused to admit testimony pertaining to any oral amendment of the union-security clause contained in the 1946 contract. Inasmuch as we have granted the General Counsel 's motion to consolidate these cases for all purposes , we have in this decision considered and appraised all the evidence adduced in all the cases 8 See National Malleable & Steel Casting Company, 99 NLRB 737; Ketchum it Company, Inc , 95 NLRB 43 , Roosevelt Oil and Re/lnting Corporation, 85 NLRB 965 * As we find hereafter that there was no valid , enforceable bargaining agreement in effect between Jersey and Independent in July 1954, when they suspended Scott from work allegedly for failure to comply R nth the provisions of a contractual union -security clause, we find for that additional season that the Respondents' action against Scott violated the Act 6Deriving its name from the case entitled Midwest Piping Supply Co, 63 NLRB 1060. JERSEY CONTRACTING CORP. 663 and Independent violated Section 8 (b) (1) (A) and (2) by their execution of a bargaining contract on December 18, 1953, at which time the AFL had a representation petition for Jersey's employees pending before the Board. The Respondents except to that finding. We deem it necessary to comment herein only upon that portion of the Re- spondents' exception based upon the Gibson 6 case, which issued after Trial Examiner Hilton issued his Intermediate Report. In Gibson the Board established an exception to its Midwest Piping doctrine, finding that the Act had not been violated even though the employer therein executed a renewal bargaining contract with an in- cumbent union during the pendency of a representation petition filed by a rival union.' There are here a number of factors which were not present in the Gibson case. In Gibson the employer and the incumbent union had bargained for the employees on an exclusive basis since 1945. The rec- ords herein show that the last previous contract covering Jersey's em- ployees, which Jersey signed before the December 1953 agreement, was executed on behalf of Local 976, Marine Freight Handlers & Warehousemen, International Longshoremen's Association, an affiliate of the AFL. But the Independent was expelled from the AFL in about August 1953. The December 1953 contract was signed in behalf of the International Longshoremen's Association, Local 976, the In- dependent herein, an organization not affiliated with the AFL. Fur- thermore, Jersey, unlike the employer in Gibson, has independently interfered with, restrained, coerced, and discriminated against its em- ployees, in violation of Section 8 (a) (1) and (3) of the Act, because of their affiliation with the AFL, the rival union seeking to replace the Independent. Finally, the contract under which Jersey and In- dependent operated before December 18, 1953, contained an unlawful union-security clause and Jersey thereby rendered illegal assistance to the Independent; thus by executing the December 18, 1953, agree- ment which incorporated the identical unlawful clause, Jersey perpetu- ated its unlawful assistance to the Independent. We find that such factors clearly distinguish this case from Gibson, and we therefore find that Jersey and Independent violated the Act by executing the December 18, 1953, collective-bargaining contract. 6 William D Gibson Company, Division of Associated Spring Corporation, 110 NLRB 660. Members Murdock and Rodgers dissented in Gibson from the action of three members of the Board in over ruling William Penn Broadcasting Company, 93 NLRB 1104. The lat- ter case held that a contract with an incumbent union in the face of a rival petition is a Midwest Piping violation if such petition in fact raises a genuine question concerning representation Consequently, they would be disposed simply to affirm the Trial Exam- iner s finding of an S (a) (2) violation which is predicated on the William Penn Broad- casting case 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the entire record in this proceeding and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent Company, Jersey Contracting Corp., Jersey City, New Jersey, its officers, agents , successors , and assigns , shall : (a) Cease and desist from: (1) Giving effect to, performing, or in any way enforcing its agree- ment of December 18, 1953, with Local 976, International Longshore- men's Association, Independent, or entering into or enforcing any extension, renewal, modification, or supplement of such an agreement or other bargaining agreement containing union-security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. (2) Encouraging membership in Local 976, International Long- shoremen's Association, Independent, or in any other labor organiza- tion by discharging any of its employees or by discriminating against them in any other manner in regard to their hire and tenure of em- ployment or any term or condition of their employment except to the extent permitted by Section 8 (a) (3) of the Act. (3) Interrogating its employees concerning their membership, sym- pathies, or activities in or on behalf of the International Longshore- men's Association, AFL, or any other labor organization in a manner constituting interference, restraint, or coercion, in violation of Sec- tion 8 (a) (1) of the Act. (4) In any other manner interfering with, restraining , or coercing its employees in the exercise of the 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 organization as a condi- tion 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) Withdraw and withhold all recognition from Local 976, Inter- national Longshoremen's Association, Independent, or any successor labor organization, as the representative of its employees for the pur - pose of dealing with it in regard to grievances, labor disputes, wages, rates of pay, hours of employment, or any other conditions of em- ployment unless and until such labor organization shall be certified by the National Labor Relations Board as the representative of its employees. (2) Jointly and severally, with Respondent Union Local 976, Inter- national Longshoremen's Association, Independent, make whole John Keating and William Scott in the manner set forth in the sections of the Intermediate Reports respectively entitled "The Remedy," for JERSEY CONTRACTING CORP. 665 any loss of pay they may have suffered because of the discrimination against them. (3) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts of back pay due under the terms of this Order. (4) Post at its places of operation in Jersey City, New Jersey, copies of the notice attached hereto marked "Appendix A." 6 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent Com- pany's representative, be posted by said Respondent Company immedi- ately upon receipt thereof and be maintained by it for sixty (60) con- secutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (5) Notify the said Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, as to the steps the Respondent Company has taken to comply herewith. II. The Respondent Union, Local 976, International Longshore- men's Association, Independent, its officers, representatives, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Restraining or coercing the employees of Respondent Jersey Contracting Corp. in the exercise of the rights guaranteed in Section 7 of the Act except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. (2) Attempting to cause or causing Respondent Jersey Contracting Corp., its officers, agents, successors, or assigns, to discharge, suspend, layoff, or in any other manner to discriminate against its employees in regard to their hire or tenure of employment or any term or con- dition of employment in order to encourage membership in Local 976, International Longshoremen's Association, Independent, except as authorized in Section 8 (a) (3) of the Act. (3) Giving effect to, performing, or in any way enforcing its agree- ment of December 18, 1953, with Respondent Jersey Contracting Corp., or entering into or enforcing any extension, renewal, modification, or supplement of such agreement or other bargaining agreement con- taining union-security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. s 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." 666 DECISIONS Or NATIONAL LABOR RELATIONS BOARD (4) Requiring employees of, or applicants for employment with, Respondent Jersey Contracting Corp. as a condition of employment to become members of and/or to pay initiation fees or dues to Local 976, International Longshoremen's Association, Independent, unless such condition is pursuant to an agreement entered into in conformity with Section 8 (a) (3) of the Act. (5) In any other manner restraining or coercing employees of Re- spondent Jersey Contracting Corp. in the exercise of the rights guar- anteed in Section 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 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) Jointly and severally with Respondent Jersey Contracting Corp. make whole John Keating and William Scott, in the manner set forth in the sections of the Intermediate Reports respectively en- titled "The Remedy," for any loss of pay they may have suffered because of the discrimination against them. (2) Reimburse William Scott for the discriminatory dues paid by him. (3) Post in conspicuous places in its business offices in New York, New York, copies of the notice attached hereto marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (4) Mail signed copies of the notice attached hereto and marked "Appendix B" to the Regional Director for the Second Region for posting, Respondent Jersey Contracting Corp. willing, at the Respond- ent Company's places of operation for sixty (60) consecutive days in places where notices to the Respondent Company's employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent Union, Local 976, International Longshoremen's Association, Independent, be forthwith returned to the Regional Director for such posting. 9lbid. JERSEY CONTRACTING CORP. 667 (5) Notify the Regional Director for the Second Region, in writing, within ten (10) days from the date of this Order, as to the steps Re- spondent Union has taken to comply herewith. MEMBER LEEDOM took no part in the consideration of the above Decision and 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, as amended, we hereby notify our employees that: WE WILL NOT give effect to, perform, or in any way enforce our agreement of December 18, 1953, with Local 976, International Longshoremen's Association, Independent, or enter into or en- force any extension, renewal, modification, or supplement of such agreement or other bargaining agreement containing union-se- curity provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. WE WILL NoT encourage membership in Local 976, International Longshoremen's Association, Independent, or in any other labor organization, by discharging any of our employees or by dis- criminating against them in any other manner in regard to their hire and tenure of employment or any term or condition of their employment except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees with regard to their membership, sympathies, or activities in or on behalf of the Inter- national Longshoremen's Association, AFL, or any other labor organization in a manner constituting interference, restraint, or coercion, in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the 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 organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL Withdraw and Withhold all recognition from Local 976, International Longshoremen's Association, Independent, or any successor labor organization, as the representative of our em- ployees for the purpose of dealing with it in regard to grievances, labor disputes, wages, rates of pay, hours of employment, or any other conditions of employment, unless and until such labor organization shall be certified by the National Labor Relations Board as the representative of our employees. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole John Keating and William Scott for any loss of pay they may have suffered as a result of the discrimina- tion practiced against them. WE WILL reimburse William Scott for the discriminatory dues paid by him. LOCAL 976 , INTERNATIONAL LONGSIIOREMEN'S ASSOCIATION , INDEPENDENT, 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. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 976, INTERNATIONAL LONGSI-IORE- MEN'S ASSOCIATION, INDEPENDENT, AND TO ALL EMPLOYEES OF JERSEY CONTRACTING CORP. 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 restrain or coerce the employees of Jersey Con- tracting Corp. in the exercise of the 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 organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT attempt to cause or cause Jersey Contracting Corp., its officers, agents, successors, or assigns, to discharge, sus- pend, layoff, or in any other manner to discriminate against its employees in regard to their hire or tenure of employment in order to encourage membership in this Union, except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT give effect to, perform, or in any way enforce our December 18, 1953, agreement with Jersey Contracting Corp., and we will not enter into or enforce any extension, renewal, modifica- tion, or supplement of such agreement or other bargaining agree- ment containing union-security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT require employees of, or applicants for employ- ment with, Jersey Contracting Corp., as a condition of employ- ment, to become members of and/or to pay initiation fees or dues to this Union unless such condition is pursuant to an agreement entered into in conformity with Section 8 (a) (3) of the Act. JERSEY CONTRACTING CORP. 669 WE WILL NOT in any other manner restrain or coerce employees of Jersey Contracting Corp. in the exercise of the rights guaran- teed in Section 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 in Sec- tion 8 (a) (3) of the Act. WE WILL make whole John Keating and William Scott for any loss of pay they may have suffered as a result of the discrimination practiced against them. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named Union, or any other labor organization, except to the extent that such rights may be affected by an agreement authorized by Section 8 (a) (3) of the Act. JERSEY CONTRACTING CORP., Einployer. 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 This proceeding, brought under Section 10 (b) of the Labor Management Relations Act of 1947, 61 Stat. 136 (herein called the Act), was heard in New York City, on June 21, 22, and 23, 1954, pursuant to due notice to all parties. The consolidated complaint , issued on April 19, 1954, by the General Counsel of the National Labor Relations Board,' based on separate charges, as amended, duly filed and served, by International Longshoremen's Association, AFL, herein called ILA-AFL, which were subsequently duly consolidated, alleges that Jersey Contracting Corp., herein called the Respondent Company or Jersey, has engaged in unfair labor practices proscribed by Section 8 (a) (1), (2), and (3) of the Act, and that Local 976, International Longshoremen's Association, Independent, herein called the Respondent Union or ILA, has engaged in acts and conduct in violation of Section 8 (b) (1) (A) and (2) of the Act The separate answers of the Respondents admit certain allegations of the complaint but deny the commission of any unfair labor practices. At the outset of the hearing the Trial Examiner, without objection, granted the mo- tion for leave to intervene by Penn Industries, Inc , herein called the Intervenor or Penn, insofar as its contractual rights and obligations with the Respondent Union might be affected by these proceedings. All parties were represented at the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. The General Counsel presented oral argument at the conclusion of the case and thereafter counsel for the parties filed briefs which have been considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE RESPONDENT COMPANY'S BUSINESS The pleadings and evidence establish that Jersey, a Delaware corporation, main- tains its office and place of business at the piers mentioned below, located in Jersey 1 The General Counsel and the staff attorney appearing for him at the hearing are referred to as the General Counsel and the National Labor Relations Board. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City, New Jersey, where it is engaged, pursuant to an exclusive agreement with the Pennsylvania Railroad, an interstate railroad carrier, in the loading and unloading of its freight cars at four piers and the Greenville yards, which are owned or operated by the railroad. During the year preceding the issuance of the complaint, Jersey, in the course of its operations, furnished services amounting to $200,000 or more to the Pennsylvania Railroad Company.2 The Respondent Company, as well as the Re- spondent Union, concede that it is engaged in commerce as defined in the Act. The Trial Examiner so finds. The Intervenor's Business Penn, a New York corporation, maintains its office and place of business in New York City, where it is engaged in the loading and unloading of freight cars for the Pennsylvania Railroad, under an exclusive agreement, at various piers owned by the railroad, located in New York City. If. THE LABOR ORGANIZATIONS INVOLVED The Respondent Union and ILA-AFL are labor organizations within the mean- ing of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Assistance and support to the Respondent Union 1. The issues In brief, the complaint alleges that by executing a collective-bargaining agree- ment on December 18, 1953, during the pendency of a petition for certification filed by the ILA-AFL, in a unit consisting of Jersey's employees, and by main- taining an illegal union-security clause in the agreement, as well as prior thereto, the Respondent Company and the Respondent Union thereby engaged in unfair labor practices in violation of Section 8 (a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2) of the Act, respectively. The Respondents and the Intervenor con- tend that the unit sought is inappropriate and that the appropriate unit consists of all employees of both Jersey and Penn who are employed in substantially the same job categories The Respondents deny they have maintained or enforced illegal union-security provisions 2. The history of collective bargaining At the outset it might be noted that the following individuals are, and obviously have been for some time, officers of the Respondent Company and the Intervenor: Jersey Penn William J. McCormack, President William J. McCormack, President John Rohrey, Vice president and general Adam Cramer, Vice president. manager Joseph Stack, Vice president and general Fred H Happiner, Vice president. manager. Adam Cramer, Secretary-Treasurer. James Hartigan, Treasurer George E. Melvin, Secretary. McCormack and Cramer are directors of both Jersey and Penn and constitute a majority of the board of directors of each company. Rohrey testified that Jersey and the Respondent Union initiated collective- bargaining relations in 1933 and have had continuous agreements since that date On April 26, 1946, the parties executed a complete new contract to run for a period of 1 year which has remained in effect as the basic contract, except as modified from time to time by supplemental agreements relating principally to wage pro- visions The last supplemental agreement preceding the events herein was effective from January 1 to December 31, 1953 3 The basic contract contained a closed- 2 At the hearing Ilie parties stipulated the services amounted to about $50,000 Shortly after the close of the heating the Boaid announced new standards for exercise of juris- diction and as a iequisite in cases of this type increased the value of such services from $50,000 to $200,000, per year Thereafter, the General Counsel submitted a stipulation signed by counsel for all the parties wherein it is agreed that Jersey furnished services valued in excess o1 the minimum requirement The stipulation is made a part of the record and is marked Trial Examiner's Exhibit No 1 S Other supplemental agreements were signed in August 1947, November 1948, September 1949, April 1951, and January 1952 JERSEY CONTRACTING CORP. 671 shop or preferential hiring provision While the agreement does not describe the bargaining unit as such, it does set forth a wage schedule for "Truckers, Boatmen, Carmen and all Common Laborers and Gang Foremen." In the supplemental agreements other job classifications were added to those named in the wage schedule, so when the supplemental agreement for 1953 was signed it also included mechanics, assistant mechanics, hostlers, steel yard operators, gantry operators, marginal operators, machinists, electricians, and welders 3. Events preceding the execution of the December 1953 agreement between the Respondents Christopher J Porter, who served as secretary-treasurer of the Respondent Union for approximately 14 years, stated that about August 1953, the Interna- tional Longshoremen's Association was expelled by its parent organization, the American Federation of Labor, which then chartered a new union, the ILA-AFL, for the purpose of organizing and representing longshoremen at various ports, including the port of New York.4 Porter joined the ILA-AFL and in October directed a campaign to organize the employees of Jersey which extended into November and December. Rohrey, who was well aware of the organizational drive, testified that about November 18 he informed Stephen Sherman, president of the Union, that the cur- rent agreement would expire December 31 and they should commence negotiations on a new contract. Sherman replied he would call a meeting of the employees and submit a proposed agreement to Rohrey, which he did on December 1. The follow- ing day Rohrey discussed the demands with McCormack and Cramer and on Decem- ber 3, the group again met, with Stack present, and prepared counterproposals, which Rohrey presented to Sherman the same afternoon Sherman said he would submit the counteiproposals to the employees. About December 6, Sherman met with Rohrey for the purpose of clarifying the provision relating to holidays On December 18, Sherman met with McCormack and Rohrey, Stack being present, and signed an agreement covering the classifications mentioned above for the period January 1 to December 31, 1954. At or about the same time Sheiman and Stack executed a simi- lar agreement for the employees of Penn In the meantime the ILA-AFL, on December 4, sent a telegram to Jersey, which admittedly was received sometime prior to December 7, stating that it intended to file a petition for certification for its employees and requested Jersey to refrain from entering into any agreement covering these employees until the question of repre- sentation had been determined A copy of the telegram was also sent to the Re- gional Office of the Board. On December 8, Porter duly filed a petition for certifi- cation on behalf of the ILA-AFL (2-RC-6449) in which the appropriate unit is described as: Checkers, truckers, boatmen, carmen and all other common laborers, gang fore- men, shopmen, mechanics, assistant mechanics, hostlers, steel yard operators, gantry operators, marginal operators, machinists, electricians and welders em- ployed at Pier K and L, Jersey City, New Jersey, and Greenville, Foot of Gates Avenue, Jersey City, New Jersey. The Respondents concede they were duly notified of the filing of the petition on December 10 or 11. The record fails to disclose any meetings between any of the parties concerning the questions raised by the petition. In any event, the ILA-AFL subsequently amended charges it had already filed against the Respondents to in- clude the illegality of the agreement and the circumstances under which it was ex- ecuted as unfair labor practices 4 Collective-bargaining procedures; the Penn contracts Rohrey stated that for many years he has conducted negotiations with the Re- spondent Union on behalf of Tersey in the same manner as the negotiations were con- ducted in November and December 1953. In general, negotiations were initiated when the Respondent Union submitted its proposed contract and thereafter Rohrey would confer with its representative at such times as might be necessary. In these *For further discussion concerning the expulsion of the International Longshoremen's Association formation of the ILA-AFT, and the events that followed , see. 33 LRRM 37 ; U S v International Longsfloreinen'.s Association, et at. ( 116 F Sup 255 and 263, US DC SD, N Y ) ; Douds v International Laiigshoiemen's Association ( 33 LRRM 2004, US DC SD N Y) 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations Rohrey was authorized to agree to contract terms, except those relating to wages or of a monetary nature, in which case he discussed the matter with McCormack and Cramer who made final decision thereon. Rohrey further stated that Penn has had separate contracts with the Respondent Union for a number of years and since 1946 the contracts of both Penn and Jersey have had the same effective and termination dates Negotiations between Penn and the Respondent Union were conducted on the same basis as the Jersey negotiations with Stack acting in a capacity similar to that of Rohrey The agreements contained substantially the same provisions, except that Penn had a higher wage scale than Jersey until the contracts of December 18, 1953, when the differential was elimi- nated, and different job classifications were, and are, maintained by the respective companies. Thus, the Penn agreements set forth a wage schedule for truckers, trac- tormen, stowers, common laborers, sweepers, riggers, and gearmen and on the night shift tractormen, carmen, and dockmen. Since the contracts have had the same termination dates, in the course of past nego- tiations, Rohrey and Stack at times conferred jointly with McCormack and Cramer in regard to wage rates and at other times separate conferences were conducted, although, of course, McCormack and Cramer made the final decision on wages for both companies. Sherman, president of the Respondent Union for the past 15 years, testified that separate meetings were held for the employees of Jersey and Penn for the purpose of formulating contract terms which were then presented to Rohrey and Stack, respec- tively. Sherman held separate negotiating meetings with Rohrey and Stack in the course of which they reached agreement on "minor details," but final approval of contract terms rested with McCormack and Cramer. Following such approval sepa- rate meetings were held for the employees to ratify or reject the agreements. The Trial Examiner concludes and finds that negotiations were conducted in the manner described by Rohrey and Sherman; that the Respondent Union has had sepa- rate agreements with Jersey and Penn for many years; and that on December 18, 1953, these parties executed agreements for their respective employees in the units set forth above. 5 Administration of the agreements; personnel and business methods Rohrey credibly testified, and it is found, that he and Stack independently processed grievances arising under the respective agreements with Sherman, or shop stewards designated and maintained in each company, and in the event they were unable to resolve the grievance, the matter then went to McCormack and Cramer tot deter- mination. Rohrey further stated each company does its own hiring, maintains its own clerical staff, records, payrolls, social-security records, workmen's compensation, and bank accounts. However, an employee of either Jersey or Penn might qualify zfor vacation pay or welfare benefits by combining his employment service with both companies. According to Rohrey, Jersey and Penn have interchanged employees in- frequently, the average being about 2 or 3 men per year. In the course of the contractual relationships between the parties, counsel stipu- lated that in 1946, Jersey and Penn filed separate applications for approval of wage adjustments with the National Wage Stabilization Board, which increases were duly approved. Again, in 1951, the companies filed separate petitions with the Wage Stabilization Board for approval of compensation adjustments. While each company retained its own counsel, the above applications and petitions were filed by counsel for Penn. The records of Board also disclose that in August 1948, the Respondent Union was certified in a union-authority election in a unit consisting of the employees of Jersey (2-UA-4000) and was likewise certified for a unit comprising the em- ployees of Penn (2-UA-3588). As appears above, Jersey and Penn perform practically identical services exclu- sively for the Pennsylvania Railroad at their respective piers and yards in the Port of New York. In performing these services, Rohrey stated each company uses its own equipment as well as equipment owned by the railroad. Each company has its own shops and is responsible for maintenance of its equipment, except that Penn rebuilds motors for Jersey. Penn has also built fire fighting equipment for Jersey and at times has constructed steel boxes and wooden pallets used in the handling of certain types of cargo. Rohrey further stated the companies interchange equipment occasionally, although Penn has "quite a few pieces of equipment" on its piers which are owned by Jersey. Concluding Findings The issue to be resolved is whether the petition raised a valid question concerning the representation of the employees of Jersey so that the execution of the agree- JERSEY CONTRACTING CORP. 673 ment of December 18, 1953, constitutes a violation of the Act. The General Counsel contends that inasmuch as the unit alleged in the petition (supra) which, with statutory exclusions, is identical to the one set forth in the complaint, is an appropriate unit, although not necessarily the only proper unit, the Respondents by executing an agreement during the pendency thereof engaged in unfair labor prac- tices under the Midwest Piping rule 5 On the other hand counsel for the Respondents and the Intervenor assert the unit is inappropriate, that a two-company unit is ap- propriate, and the Respondents by executing the agreement did not thereby engage in any proscribed acts or conduct. Counsel submitted many authorities in support of their contention that a two- company unit is the only appropriate one under the circumstances herein. These cases hold as a general proposition that where certain factors prevail two companies may be considered as one employer under the Act. For instance in Concrete Haulers, Inc., et al. (106 NLRB 690, enfd. 212 F. 2d 474 (C. A. 5) ), the facts disclosed that Wamix, Inc , which manufactured and sold ready mixed concrete, organized Concrete Haulers for the purpose of delivering its product and transferred its trucks and diivers to the new company. The Board found that in view of common stock ownership, a common labor policy administered by the same officers of the companies and the interdependent and integrated nature of their operations, both companies constituted a single employer under the Act. In Inter-Ocean Steamship Co. (Tom- linson Fleet), 107 NLRB 330, the petitioner sought a unit limited to unlicensed personnel on one ship operated by the employer. The company contended that the unit should be extended to include like personnel throughout the fleet, which consisted of 9 ships, of which 6, including the ship in question, were owned by separate corporations and the remaining 3 a seventh corporation. The officers and a majority of the directors were common to all the companies, they also had their offices at the same address, had common office employees, maintained a common bank account, and hauling contracts were negotiated by the common president and signed in the fleet name. An assistant manager had full authority to dispatch any vessel to fulfill a contract and a marine superintendent was responsible for the repair and maintenance of all ships and for employment generally, including transfers of personnel between vessels as well as equipment. Uniform working conditions pre- vailed throughout the fleet. The Board held that the operations were so integrated that the seven companies comprised a single employer under Section 2 (2) and that a fleetwide unit, rather than the one sought, was appropriate. In Clarksburg Paper Company, 80 NLRB 1304, the union petitioned for a unit limited to the employees of one plant at Pomona, California. Clarksburg was engaged in the manufacture of corrugated paper containers and sold its entire output to Hazel- Atlas Glass Corporation, the latter company being engaged in the manufacture of glass containers at the same location. The companies were separate entities and separately employed, supervised, and paid their employees However, Hazel-Atlas rented buildings to Clarksburg, furnished electrical and machine shop maintenance, supplied watchmen, its employees assisted in the unloading of materials delivered by Clarksburg, and in cases of emergencies employees were interchanged. The com- panies maintained unified labor policies with the superintendent of Hazel-Atlas representing both companies in labor relations matters. The Board held that in view of the highly integrated operations of the companies and unified control of labor policies they constituted a single employer, therefore a unit confined to Clarksburg was inappropriate. Other cases cited are to like effect. Unquestionably, certain factors relied upon by the Board in determining two companies may constitute a single employer are present in this case. Thus, there is common ownership of stock, the companies have practically the same directors, bargaining negotiations, at least in the final stages, have been conducted by the same representatives, and substantially identical working conditions have existed for many years Under these circumstances it may well be that Jersey and Penn could together be considered a single employer for the purposes of the Act. However, other factors in the cases discussed do not appear in the instant proceeding. Here there is no evidence that the operations of Jersey and Penn are interdependent for, although they are engaged in similar operations, they perform their services on opposite sides of the Hudson or North River and clearly each is capable of carrying out its func- tions irrespective of any operational activity on the part of the other company It seems equally plain that the companies do not conduct their operations on an inte- grated basis for they separately hire, supervise, and discharge employees, maintain separate personnel and business records, and there is no systematic or worthwhile interchange of either employees or equipment. Moreover, the fact remains that 5 63 NLRB 1060. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for many years the companies have had separate agreements with the Respondent Union, each covering different job classifications, although admittedly all the em- ployees are engaged in general longshoie or stevedore work. For these reasons the Trial Examiner concludes and finds that the unit alleged in the complaint is appro- priate for the purposes of collective bargaining. (Lumber Fabricators, Inc, 110 NLRB 187; Simplex Tool and Die Corporation, 107 NLRB 750, Lee Miller Co, et al, 106 NLRB 527, Clay & Bailey Manufacturing Company, et al., 106 NLRB 210; Rose Marie Reid, etc., 103 NLRB 498). While, as stated above, a two-company unit might be proper, the record is wholly inadequate to compel a determination that such a unit is the only one appropriate for the purposes of collective bargaining. Indeed, it would seem more reasonable to say the weight of the evidence warrants a contrary view of the unit. In any event, the Board when presented with like situa- tions in the Lumber Fabricatois, Simplex, Miller, and Clay cases, supra, directed that self-determination elections be conducted among the employees. In view of the foregoing circumstances the Trial Examiner finds that the petition set forth an appropriate unit and raised a real question concerning the representation of the employees involved herein. Consequently, by executing the illegal agree- ment of December 18, while the petition was pending, the Respondent Company thereby violated the rights guaranteed its employees to be free to engage in or refrain from engaging in collective-bargaining activities, except as permitted by the proviso contained in Section 8 (a) (3) of the Act, and gave support and assistance to the Respondent Union. The Respondent Company therefore engaged in unfair labor practices in violation of Section 8 (a) (1), (2), and (3) of the Act. (Midwest Piping case, supra, William Penn Broadcasting Company, 93 NLRB 1104, Red Star Express Lines, Inc., 93 NLRB 127, enfd. 196 F. 2d 78 (C. A. 2); Edwin D. Wemyss d/b/a Coca-Cola Bottling Company of Stockton, 102 NLRB 586, enfd. as mod. 212 F. 2d 465 (C. A. 9); Bickford Shoes, Inc, 109 NLRB 1346). The Respondent Union by executing the aforementioned agreement caused or attempted to cause the Respondent Company to discriminate against employees in violation of Section 8 (a) (3) of the Act and thereby engaged in unfair labor practices prohibited by Section 8 (b) (2) and (1) (A) of the Act. B. The discharge of John Keating 1. The General Counsel's case Keating was employed by Jersey for about 13 years and during the time in ques- tion worked as a tractor driver on the night shift. During the period of his employ- ment he was a member of the Respondent Union. About October 24, 1953, Keating joined Porter in the campaign conducted by the ILA-AFL and openly solicited for that organization among the employees. On Friday, November 20, Keating reported for work at the usual time, but prior to the commencement of the shift Michael Verdon, ILA steward for the night force, handed him a letter. When Keating asked what it was about, Verdon replied he did not know but to see Joseph Murphy, night superintendent. The letter, which was signed by Michael Monroe, ILA steward for the day shift, stated that since Keating had been signing up employees in another union he was suspended from membership in the ILA and that charges would be preferred against him at the next meeting of the union executive board to be held on November 24. Keating thereupon went to Murphy and offered to let him see the letter but he refused to accept it. Keating then asked what it meant and Murphy said he did not know. Murphy left Keating in order to speak to Verdon and after doing so, informed him the letter had something to do with the ILA and he could not work until he straightened out the matter. Keating then left the pier. On the evening of Monday, November 23, Keating talked to Murphy, with Verdon present, and in answer to his request that he be permitted to work, Murphy again told him he could not do so until the matter was straightened out with the ILA. On the same date Keating testified he sent a money order to the ILA in the sum of $9, in payment for umon dues for October, November, and December. The ILA admitted it received the money order on November 27. Keating also stated that on October 7, he personally paid Sherman 2 months' dues for August and September, which was duly noted in his dues book. Sherman, after examining the dues books, did not question Keating's testimony. On Wednesday, November 25, Keating went to the pier to collect his wages, it was regular payday, and was told by an office employee that Rohrey wanted to see him. Keating went to the office where Rohrey accused him of "signing up my men" JERSEY CONTRACTING CORP. 675 and when Keating stated they were not his men, Rohrey said it made no difference, "I want you to stop signing them up." Robley then questioned Keating as to the number of employees signed up as well as the names of the individuals actively engaged in the campaign. When Keating refused to give him any information on these subjects Rohrey remarked, "I guess its a good thing Sherman got rid of you." Keating asked Rohrey if he was fired and he answered, "No," he then declared he might as well be and offered to return his identification tag. Rohrey refused to accept the tag and told Keating he had been suspended until he settled the matter with the ILA. Keating then left the office On the above date the I LA sent a letter to Keating, which he received shortly thereafter, stating that Monroe had filed charges against him because of his dual union activity and that a hearing would be held on December 1 Keating did not appear at the hearing and by letter dated December 2, he was notified he had been expelled from membership in the ILA. In the meantime Keating received a letter dated December 1, from Rohrey advising him that his suspension for nonpayment of dues had been lifted and to report for work immediately. Keating was reemployed on the evening of December 2, and has been working since that date Verdon stated that on the evening of November 20, he met Sherman and Monroe who told him Keating was signing up men in the ILA-AFL and wanted Verdon to have him fired. Verdon refused, so latei Sherman and Monroe gave him a letter to deliver to Keating and to inform him he had been suspended. Verdon gave the letter to Keating and believed he told him of his suspension. 2. The Respondent Company's case Rohrey testified that about 5 o'clock the evening of November 20, Sherman came to his office and notified him Keating had been suspended for nonpayment of dues and that he was not to woik that night Rohrey asked for a letter to that effect After the conveisation Rohrey called William E Tuohey, assistant general manager, and instructed him that Keating was not to work and to so advise Murphy On November 23, Rohrey received a letter from the ILA stating that Keating had been suspended because he was 5 months in ariears in dues Except as stated above, Rohrey had no knowledge as to whether or not Keating was delinquent in his dues Rohrey admitted he heard rumors Keating was soliciting for the ILA-AFL and on November 23, he heard Keating was to be brought up on charges for such activities. On November 25, Rohrey called Keating to his office at which time he said he understood he had been fired and offered to turn in his tag. Rohrey told him he had not been discharged but suspended for dues arrearage. Keating asked what he was supposed to do and Rohrey advised him to see Sherman and get reinstated Rohrey remarked he had heard Keating had been signing up the employees and Keating admitted this was true. Rohrey denied that he told Keating to stop soliciting or that he threatened or warned him in any manner. On November 30, Rohrey received a letter from the ILA advising that Keating's suspension for nonpayment of dues had been lifted, whereupon he notified Keating to report for work and he was reemployed on December 2. Tuohey testified substantially the same as Rohrey concerning the latter's con- versation with Keating on November 25, except that Tuohey could not definitely recall any discussion regarding the signing of authorization cards. 3. The Respondent Union's case Sherman related that on November 20, Keating was suspended from membersh;p by the executive board because he was 4 months in arrears in his dues The minutes of the board, which were identified by Frank Baffa, secretary-treasurer, and received in evidence, disclose a special meeting was held on the morning of the above date for the purpose of discussing "dual union activities" on the part of Keating and the board decided he should be suspended at once and the matter referred to the meeting to be held on November 24.6 The minutes also show that Baffa reported 9 Article XI, section 6 of the constitution provides that officers of the ILA may suspend members pending the filing of chni ges, where such officer finds the member guilty of Violating any provision of the constitution, or ally rule, regulation, or decision of board, violating anv union isle relating to his work or conduct on the job, and disorderly, abusive, or dishonest conduct on the job 300028-5G-vol 112--44 (676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keating was 5 months behind in dues and the board likewise voted to suspend him ,for that reason.7 Following this action Sherman personally notified Rohrey of Keating's suspension ,for nonpayment of dues and requested he be withheld from working. Sherman, at Rohrey's request, agreed to give a letter to that effect, which he did. Sherman and Monroe then gave a letter to Verdon to deliver to Keating, with instructions to inform him of his suspension for delinquency in dues. Sherman denied that he or Monroe told Verdon they wanted Keating fired. Subsequently, as appears above, when Keating paid $9 in dues the ILA immediately advised Jersey that his suspension for that reason had been lifted. Sherman testified when members paid their dues he would write the transaction on a sheet of paper, mark their books, and then give the paper to the secretary- treasurer who would make an entry thereof in the official ledger maintained by the ILA. Obviously, the same procedure applied when payments were made to shop stewards or mailed to the office. Sherman also prepared an additional record on a sheet of paper which he carried as a "ready reference" on visits to various piers so that he could advise the men concerning their dues status. Sherman further stated that about October 3, Porter, after becoming affiliated with the ILA-AFL, removed the ledger and other records of the ILA from its office. Porter admitted that in early October he took all 1LA records, books, and documents that he could find In view of this condition Sherman said he attempted to recon- struct the dues ledger from the only available records, namely his "ready reference" sheets. These records indicated that as of November 20, Keating owed dues for August, September, October, and November and on the basis thereof Keating was suspended. While Sherman believed his records to be accurate at that time he conceded they may have been erroneous, because he was under great strain, and in any event he did not question the fact that Keating paid his dues on October 7. Sherman further admitted he did not talk to Keating on November 20, nor did he make any effort to check Keating's dues book prior to the suspension action. Concluding Findings There is little dispute as to the circumstances under which Keating was dis- . charged or laid off. The Trial Examiner finds that Keating was suspended from membership by the ILA executive board on November 20 for his activity on behalf of the ILA-AFL and for arrearage in dues. Sherman then requested Jersey to lay off Keating for the latter reason and the Respondent Company complied with this request. The suspension was lifted after Keating paid 3 months' dues and he was reinstated to his job on December 2. The evidence discloses that the Respondent Company laid off Keating for delinquency in his dues and that Keating was not in fact delinquent at the time. The proviso in Section 8 (a) (3) states that nothing in the Act shall preclude an employer from making an arrangement with a bona fide labor organization to re- quire as a condition of employment membership therein on or after 30 days follow- ing the beginning of such employment or the effective date of the agreement The proviso further states that no employer shall justify any discrimination against an employee for nonmembership in a labor organization if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Section 8 (b) (2) makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8 (a) (3) of the Act. Hence, if the Respondents effectuated Keating's discharge, by reason of his failure to pay dues, pursuant to the terms of a valid union-security agreement they engaged in no unfair labor practices. On the contrary if the Respondents acted under the terms of an illegal union-security clause they plainly engaged in violations of the Act. For the reasons stated below the Trial Examiner finds that on November 20, and thereafter, the Respondents maintained an unlawful union-security pro- vision in their agreement and by enforcing the terms thereof against Keating, the Respondent Company violated Section 8 (a) (3) and (1) and the Respondent Union Section 8 (b) (2) and (1) (A) of the Act. 4 Article VT. section 6 of the constitution provides that any member 3 months or more in arrears in the payment of dues or assessments shall be subject to summary suspension from all rights and privileges of membership. JERSEY CONTRACTING CORP. 677 C. The closed-shop or preferential hiring provision of the agreements The basic agreement of 1946 provides that: The employer agrees to employ only members of the Union in good standing on all of its contract operations and the Union agrees to furnish at all times the necessary help to do the employer's work. Should the Union fail to furnish the necessary help then the employer may hire such help as he may see fit, provided however, that such hiring shall be tem- porary only and any such employment shall terminate as soon as Union help is available. Various supplements to the basic agreement, including the one in effect in November 1953, and the supplement of December 18, 1953, do not eliminate or modify the fore- going provision. In brief, the Respondents contend that despite the continuing existence of this clause the parties have been operating under a maintenance-of-membership agree- ment for many years Rohrey testified that Jersey has never insisted upon ILA membership as a condi- tion of hiring and pointed out that "some years ago," during World War II, Jersey and Penn hired men, through a joint employment office, who were not members of the ILA. In 1 year of that period Jersey hired a total of 5,300 men to staff its force of some 1,600 employees. The practice of hiring men through this office was dis- continued after the war. For the past 4 or 5 years the working force has comprised some 300 employees and Rohrey stated that 3 or 4 months prior to the hearing in this matter he hired a few men who were not members of any union. Cramer testified that since the effective date of the Act Penn has not required membership in the ILA as a condition of hiring nor has it insisted that employees become members thereof within any specified time. Sherman said the ILA never required membership therein as a condition of hiring, and on many occasions Jersey employed nonunion men, nor did it insist that an employee become a member within any specified time. Some employees, he stated, voluntarily joined within a week while others extended their membership or initiation fees over a period of 6 months or longer. As already stated the parties took no steps to eliminate or modify the closed-shop provision of the basic contract. However, on January 21, 1954, after the filing of the charges herein, Sherman sent the following letter to both Jersey and Penn- So far as your employees joining and being members of our Union is concerned, this will confirm our understanding that the Taft-Hartley Act has been in effect for many years and continues to be in effect in all respects, including the hire and tenure of workers. Neither Rohrey nor Cramer testified concerning any agreement to eliminate or modify the closed-shop provision and there is no evidence whatever indicating their position in respect to the contents of the above letters. In fact neither of these individuals even mentioned the letters in the course of their testimony. Concluding Findings While the closed-shop provision of the 1946 agreement was not unlawful at the time of its execution subsequent amendments to the original Act clearly outlawed this type of union security. Accordingly, the Trial Examiner concludes and finds that the very existence of this provision in the supplemental agreements in effect during 1953 tended to encourage membership in the ILA. In fact, long before the 1947 amend- ments to the Act, both the courts and the Board held that the mere signing of an il- legal closed-shop agreement tended to encourage or discourage membership in any labor organization.8 The Trial Examiner therefore finds that the continuation and re- tention of the closed-shop provision in succeeding agreements, which clause was effec- tive during the 6 months' period prior to the filing of the charges herein, constitutes a violation of the Act. (N. L. R. B v United Hoisting Company, et al., 198 F. 2d 465, 468 (C. A. 3), cert. denied 344 U. S. 914; Leo Katz d/b/a Lee's Department Store v N L R. B., 196 F. 2d 411, 415-416 (C. A. 9); Red Star Express Lines v. N. L. R B., 196 F. 2d 78, 80-81 (C. A 2); Boss Overall Cleaners, 100 NLRB 1210, 1212, 1227-1229. See Amalgamated Meat Cutters and Butcher Workmen of North America, AFL (Great Atlantic and Pacific Tea Company), 81 NLRB 1052, 1054- 8 Al L R R v National Motor fearing Co , ]05 F 2d 652, 660 (C A 9) ; Donnelly ,Garment Company. 50 NLRB 241, enfd 165 F 2d 940 (C A 8) , Hig7ncay Trailer Com- pany, 3 NLRB 591. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1055; Ebasco Services Incorporated, 107 NLRB 617; C. A. Batson Co., 108 NLRB 1337 ) Moreover, there is no substantial evidence to warrant a finding that the Respond- ents did not intend to enforce the unlawful employment restriction. Thus, while Rohrey testified he never insisted that a man be a member of the ILA as a condition of hire, he failed to state whether an employee could continue in his employment without becoming a member thereof. Sherman testified in like manner as to initial employ- ment and added that thereafter. "We have never required a man to become a mem- ber under any specific time " On cross-examination Sherman reiterated the ILA did not object to the employment of nonmembers and when asked if employees "who were not members in good standing" continued to work for Jersey he answered, "It has occurred " In further explanation, Sherman said there were times when the ILA permitted an employee to become as much as 4 or 5 months in arrears in his dues be- fore suspending him, provided he had a good reason for his delinquency. Sherman ad- mitted he checked the dues status of the employees every 2 or 3 months and in- structed shop stewards "to remind" workers of any arrearage they might have incur red Verdon testified it was one of his duties as shop steward to know whether the employees were members in good standing and usually when employees became 3 or 4 months delinquent in dues Sherman instructed him to, "Knock them off until they pay up " The foregoing evidence, plus the findings in respect to Keating's discharge, plainly demonstrates that the Respondents intended to enforce and did enforce the terms of the closed-shop provision at all times material herein. The Respondents further contend, as appears in the brief submitted by the Re- spondent Company, that despite the closed-shop provision of the contract, "there has actually been in effect a maintenance of membership agreement operating between the company the Union for a number of years " The evidence fails to establish the existence of a valid union-security agreement at any time during the contractual rela- tionship of the parties. The testimony of Rohrey and Sherman amounts to no more than a general declaration that they did not insist upon union membership as a condi- tion of hire and Sherman's added assertion that after employment the ILA did not require membership within any specified time Further, there is not a word of testimony that the Respondents, either by written or oral understanding, or in actual practice and operation, ever maintained or enforced a union-security agreement which required as condition of employment for employees, be they old or new, membership in the ILA "on or after the thirtieth day following the beginning of such employment or the effective date of the agreement," in conformity with the mandatory provisions of statute. It strikes the Trial Examiner that had the closed-shop clause been modified to provide only for a lawful union-security provision that fact could have been readily established by clear and unequivocal evidence by the Respondents for knowledge thereof was peculiarly within their possession. The failure to come forward with adequate evidence to support their position strengthens the conviction that the Re- spondents, at no time, modified the contract provision in question. (Cf N. L. R. B. v. Reed d Prince Manufacturing Company, 130 F. 2d 765, 768 (C. A. 1).) Sherman, in an obvious rescue attempt, claimed that his letter of January 21, 1954, supported his position that the contract had been modified or changed to include a lawful union- security provision. On its face the communication, which is completely ignored by the Respondent Company, shows it is nothing more than a belated self-serving declara- tion on the part of Sherman. Again, the language therein is so rambling, uncertain, and confusing that the letter is meaningless and of no value for any purposes Speak- ing upon the subject of modification the circuit court, in Red Star Express Lines, supra, in rejecting the contention that an addendum by the parties was sufficient to suspend the operation of an illegal union-security provision, had this to say (at page 81); The execution of a contract containing a forbidden union-security clause consti- tutes an unfair labor practice. This is so because the existence of such an agree- ment without more tends to encourage membership in a labor organization . . The contract as modified by the addendum continued to be such an interference and constituted an unfair labor practice For the question is not only whether under principles of contract law the addendum would contractually negative the illegal union security clauses, but whether it would have the effect of preventing the coercion that would otherwise follow from the renewal of the earlier agree- ments. The Board found it would not have such an effect "because it fails to specify which, if any, clauses were to be suspended " In our opinion the Board was entitled to adopt this view as a matter of sound policy and reasonable interpre- tation. The vague language of the addendum would not help the ordinary em- ployee to understand that the union security clause was no longer binding. . . . Employees certainly could not be expected to understand the scope of such a proviso even if it had been communicated to them, as it was not. JERSEY CONTRACTING CORP. 679 In view of the foregoing evidence the Trial Examiner finds that the Respondents -did not modify or eliminate the closed-shop provision but continued and maintained the same at all times material herein. Here it must be recognized, as the Supreme Court held in the Radio Officers' Union case,9 the policy of the Act is to insulate employees' jobs from their organizational rights and that Section 8 (a) (3) and Section 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 only limitation Congress has chosen to impose on this right is specified in the proviso to Section 8 (a) (3) which authorizes employers to enter into certain union security contracts, but pro- hibits discharge under such contracts if membership "was not available to the employee on the same terms and conditions generally applicable to other members" or if "membership was denied or terminated for reasons other than the failure of the employee to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership." Consequently, by continuing and enforcing the closed-shop provision of the 1946 .agreement in 1953, within the 6 months' period preceding the filing of the charges herein, the Respondent Company violated Section 8 (a) (1), (2), and (3) of the Act and the Respondent Union violated Section 8 (b) (1) (A) and (2) thereof. (Consolidated Western Steel Corporation, et al., 108 NLRB 1041; Tacoma Harbor Lumber and Timber Company, et al., 108 NLRB 912: Ebasco Sei vices Incorporated, supra. See also, Seaboard Terminal and Refrigeration Company, 109 NLRB 1094, in which the Board held that an agreement between the ILA (or one of its com- ponents) and the employer containing a closed-shop provision, identical to the one in this case, to be illegal, hence no bar to the proceedings.) D. Acts of interrogation; conclusions Edward Brogan was called to Rohrey's office in the latter part of November, he could not recall whether it was shortly before or after Keating's discharge, where Rohrey asked him if he knew anything about Keating trying to organize a new union and if he had signed an authorization card for that organization. Brogan answered both questions in the negative. Perry Holmes stated that about 1 week before Keating's discharge he was sum- moned to the office where Rohrey propounded similar questions to him and he answered the same as Brogan. Charles Kaminski was called into the office about 2 days after Keating's layoff and Rohrey remarked that Keating was signing up the men. Kaminski said he understood Keating had been fired whereupon Rohrey concluded the conversation. Kaminski stated all the men on the night shift were called separately to the office on this occasion. Rohrey admitted that he interviewed the men in connection with working condi- tions and while he asked a few of them "what is wrong with Keating," he denied inquiring if the men had signed authorization cards for the ILA-AFL. Rohrey's version of his interviews with the employees is rather vague and con- sidered in the light of the direct evidence of the witnesses for the General Counsel it is neither convincing nor persuasive and is rejected. As set forth above, Keating met with Rohrey on November 25, and in the course of their conversation Keating asserted Rohrey questioned him as to the number of employees signed up in the ILA-AFL and the names of the individuals engaged in this activity. Keating refused to disclose this information. Rohrey testified the conversation was devoted primarily to Keating's suspension and during the course thereof he did mention that he was soliciting for the ILA-AFL, which Keating admitted. Rohrey did not specifically deny that he inquired as to the number of men signed up and the names of those active in the organizational drive. Although Tuohey corroborated Rohrey's testimony as to the gist of the conversation he could not definitely recall any discussion in respect to the signing of authorization cards. Keating's testimony thus stands uncontradicted and is accepted. But even apart from this factor both Rohrey and Tuohey, while testifying on the interrogation phase of the case, impressed the Trial Examiner that they were uncertain and hazy on important details of the subject matter. Accordingly, the Trial Examiner finds that Rohrey interrogated the employees in the manner described by Keating, Brogan, Holmes, and Kaminski. While it may be true the bitter and highly publicized strife 9The Radio Officers' Uii.ion of the Comnieieial Telegraphers Union, AFL v Al L R B., 347 U. S. 17, 40. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the rival organizations might afford some excuse for Rohrey 's efforts to find out the attitude and position of the employees in this contest , nevertheless, the fact remains that he, a high supervisory official, questioned the workers on the topic of their union membership , sympathies , and activities at a time when the Respondent Company was engaged in other conduct prohibited by the Act. Under the circum- stances the Trial Examiner finds that the interrogations were coercive and con- stituted restraint and interference with the employees in the exercise of their rights guaranteed under the Act. The Respondent Company thereby engaged in conduct in violation of Section 8 (a) (1) of the Act. (N. L. R. B. v. Syracuse Color Press, Inc., 209 F. 2d 377 (C. A. 2), cert. denied 347 U. S. 966; Blue Flash Express, Inc., 109 NLRB 591.) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with the operations of the Respondent Company, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor prac- tices, it will be recommended that each of them cease and desist therefrom and take certain affirmative action, designed to effectuate the policies of the Act. It has been found that the Respondent Company recognized the Respondent Union and executed an agreement with it on December 18, 1953, during the pendency of a valid petition which raised a question concerning the representation of the employees covered thereby . Accordingly, it will be recommended that the Respondent Com- pany withhold all recognition from the Respondent Union and cease giving effect to the contract , or any extension or renewal thereof, until such time as the Respondent Union shall have been certified by the Board as the exclusive representative of the employees in question . It has also been found that the agreement contains an illegal union-security provision which constitutes interference , restraint, and coercion against the employees in the exercise of their rights guaranteed under the Act and unlawful assistance to the Respondent Union. Therefore, it will be recommended that the Respondents cease giving effect to or enforcing the contract or any extension or re- newal thereof. It has been further found that the Respondent Company through enforcing an unlawful union-security provision in its contract with the Respondent Union, in effect on November 20, 1953, has discriminated , and the Respondent Union has caused it to discriminate , with respect to the hire and tenure of employment of John Keating. It will, therefore , be recommended that the Respondent Company cease encouraging membership in the Respondent Union by discharging or otherwise dis- criminating in regard to the hire and tenure of employment of its employees at the illegal request of the Respondent Union. It will be further recommended that the Respondent Union cease encouraging membership therein by causing or attempting to cause the Respondent Company to discharge or otherwise discriminate in respect to the hire and tenure of employment in violation of Section 8 (a) (3) of the Act. Since John Keating has been rehired to his former position no recommendation need be made concerning his reinstatement . However, as it has been found that the Respondents are jointly and severally responsible for his discriminatory discharge it will be recommended that likewise they make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that he normally would have earned from November 20 to December 2, 1953, less his net earnings, if any It has been found that the Respondent Company interrogated its employees in regard to their union membership , sympathies , and activities during the course of an organizational campaign by the ILA-AFL, at a time when the Respondent Company was engaged in other unlawful conduct. It will be recommended that the Respondent Company cease questioning its employees in this manner Upon the basis of the foregoing findings of fact , and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of Respondent Jersey Contracting Corp., occur in commerce as defined in Section 2 ( 6) and (7) of the Act. 2. Respondent Local 976, International Longshoremen's Association , Independent, and International Longshoremen 's Association, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. JERSEY CONTRACTING CORP. 681 3 By recognizing and executing an agreement with the Respondent Union on December 18, 1953, while a valid petition for certification was pending, and by in- cluding unlawful union-security provisions in the contract, the Respondent Company interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Act, contributed assistance and support to the Respondent Union and encouraged membership therein, and discouraged member- ship in the ILA-AFL. The Respondent Company thereby engaged in and has con- tinued to engage in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act. 4 By executing the illegal agreement the Respondent Union restrained and coerced employees in the exercise of their rights guaranteed under Section 7 of the Act and attempted to cause the Respondent Company to discriminate against its employees in order to encourage membership in a labor organization and thus to commit unfair labor practices within the meaning of Section 8 (a) (3) of the Act. The Respondent Union thereby engaged and has continued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 5. By discriminating with respect to the hire and tenure of employment of John Keating, the Respondent Company encouraged membership in the Respondent Union and discouraged membership in the ILA-AFL and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 6. By causing the Respondent Company to discriminate against John Keating in violation of Section 8 (a) (3) of the Act, the Respondent Union engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. By interrogating its employees in regard to their union membership, sympathies, and activities the Respondent Company interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under the Act and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 9. By restraining and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act 10. 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.] INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Re- lations Act of 1947, 61 Stat. 136 (herein called the Act), was held before the duly designated Trial Examiner in New York City on October 11, 1954, pursuant to due notice to all parties. The consolidated complaint, issued on August 18, 1954, and based on separate charges duly filed by International Longshoremen's Association, AFL, herein called ILA-AFL or the Charging Union, alleged that Jersey Contract- ing Corp., herein called Respondent Company, has engaged in unfair labor prac- tices proscribed by Section 8 (a) (1) and (3) of the Act, and that Local 976, Inter- national Longshoremen's Association, Independent, herein called Respondent Union, has engaged in acts and conduct in violation of Section 8 (b) (1) (A) and 8 (b) (2) and Section 2 (6) and (7) of the Act. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about July 16, 1954, Respondent Union caused Respondent Company to discharge or refuse to employ William James Scott for the reason that he failed to pay dues to Respondent Union notwithstanding that Respondent Union and Respondent Company were not then parties to any collective-bargaining agreement executed in conformity with the terms and provisions of Section 8 (a) (3) of the Act. By their separate answers, both Respondents de- nied the commission of any unfair labor practice. By its separate answer, Respond- ent Union further pleaded the existence of a valid union-security contract with Respondent Company, and that pursuant to said contract, Scott had been suspended from membership by reason of his failure to pay the union dues required under said contract. Respondent Union, however, specifically denied that it had requested or demanded of Respondent Company that it discharge Scott or refuse to employ him. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All parties were represented at the hearing 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 . During the course of the hearing, the parties stipu- lated, and it ordered, that those portions of the record in a prior consolidated pro- ceeding before this Board , and involving the same parties , known as Cases Nos. 2-CA-3473, 2-CA-3553, 2-CB-1052, and 2-CB-1081, which are relevant and material to the issues framed by the pleading in the instant proceeding, be incorporated into and made a part of the record herein .' Since the close of the hearing herein, briefs have been received from Respondent Company and Respondent Union and have been duly considered. Upon the entire record herein , including the stipulated record last aforementioned, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY At all times material herein, Respondent Company has maintained its principal office and place of business in Jersey City, New Jersey, on piers belonging to the Pennsylvania Railroad, an interstate railroad carrier. Respondent Company has been continuously engaged at said piers in the handling and unloading of freight from cars of the Pennsylvania Railroad which are towed on floats to those piers and which leave such piers by such floats or by railroad track. During the year pre- ceding the institution of this proceeding, Respondent Company, in the course and conduct of its business operations, furnished in excess of $200,000 worth of services to the Pennsylvania Railroad, an interstate railroad carrier and an instrumentality of interstate commerce. Respondent Company and Respondent Union concede, and I find, that Respondent Company is engaged in commerce as defined by the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent Union and ILA-AFL are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent Company and Respondent Union have maintained collective-bargain- ing relations since 1933. On April 26, 1946, the parties executed a contract cover- ing such relations effective for 1 year, which contract is hereafter referred to as the basic contract. That agreement, except as modified from time to time with respect to economic benefits and other matters with which we are not concerned, has re- mained in effect ever since 1946 by reason of supplemental agreements thereafter executed. The last such supplement was executed on December 18, 1953, and was to be effective until December 31, 1954. The basic contract contains the following closed-shop provisions as article I thereof: The employer agrees to employ only members of the Union in good standing on all of its contract operations and the Union agrees to furnish at all times the necessary help to do the employers work. Should the Union fail to furnish the necessary help then the employer may hire such help as he may see fit, provided however, that such hiring shall be temporary only and any such employment shall terminate as soon as Union help is available. While the foregoing provisions were not in violation of law in 1946, they were proscribed, except under circumstances not relevant here, by the proviso added by the Taft-Hartley Act to Section 8 (a) (3) of the Act effective August 23, 1947. Though the Board, on August 19, 1948, in Case No. 2-UA-4000, certified that the parties were authorized to enter into an agreement providing for the maintenance of membership by Respondent Company's employees in Respondent Union in accord- ance with the proviso to Section 8 (a) (3) of the Act, no written agreement modifying or changing the closed-shop provision of the basic contract has ever been executed. Both Respondents contend, however, that in the summer of 1948, under circum- stances hereafter detailed, they entered into an oral modification of the then existing collective-bargaining agreement so as to provide for union security only in accord- ance with Section 8 (a) (3) of the Act, and that their employment practices there- after were maintained in accordance with the proviso aforementioned. 1 Motions to dismiss the proceedings, made by both Respondents at the close of the General Counsel's case and on which rulings were reserved, aie disposed of in accordance with the conclusions that follow. JERSEY CONTRACTING CORP. 683 Early in December 1953, Respondent Company and Respondent Union began negotiations for a new contract to replace the then current agreement expiring on December 31, 1953, which negotiations culminated in an agreement executed on December 18, 1953 By the terms of that contract, the basic contract, as amended and supplemented by previous written agreements, was extended to December 31, 1954. In the meantime, in or about August 1953, Respondent Union had been expelled by its parent organization, the American Federation of Labor, which then chartered a new union, the Charging Union herein, for the purpose of organizing and representing longshoremen at the same ports where longshoremen were then represented by Respondent Union. On December 4, 1953, ILA-AFL, the Charging Union, sent a telegram to Respondent Company stating that it intended to file a petition for certification as representative of its employees and requesting the Com- pany to refrain from entering into any agreement covering those employees until the question of representation had been determined. Such a petition was filed with the Board on December 8, as Case No. 2-RC-6449. Respondents concede they were notified of the filing of the petition on December 10 or 11. The record fails to disclose any action on that petition, except for a notice of hearing issued thereon. William Scott, the alleged discriminatee involved in this proceeding, has been employed by Respondent Company about 3 years as a freight handler and was a member of the Respondent Union "almost ever since [he] was working there " He joined the Charging Union "some time" in 1953 and became its shop steward prior to his discharge on July 16, 1954 On that day, Scott was 9 months in arrears in his dues to Respondent Union and had been "summarily suspended" as a member thereof in accordance with its constitution and bylaws. Scott reported for work at the pier on Friday, July 16, at about 8 a m., at which time Mickey Monroe, shop steward for Respondent Union, introduced him to Frank Baffa, its secretary-treasurer. Baffa told Scott he had to pay his dues or he couldn't work and the latter replied that he didn't have the money Baffa and Scott walked into a shanty located on the dock where Baffa, referring to Scott, said to Steve Bogden, Respondent Company's day superintendent: "This man don't work because his dues are not paid up." Bogden said he was sorry, but Scott was not allowed to work on that day. Scott reported for work again on Monday, July 19, in company of John Keating, a fellow employee Monroe again told Scott that he couldn't work until his dues were paid and that when they were paid he could go to "work like any other man on the pier." Turning to Bogden, he told him that Scott "wasn't working that morning on account of his dues " Bogden said "all right" and turning to William Tuohey, assistant general manager of Respondent Company, who joined the group at that point, told him that Scott couldn't work until he paid his dues. Tuohey acknowledged the direction and told Bogden he had "just heard about it " Scott was not allowed to work that day. On the following day, July 30, Scott paid the 9 months' dues in which he was delinquent and went back to work. He has con- tinued in Respondent's employment ever since. The findings entered above concerning the events of July 16 and 19 are based on the credited testimony of Scott and Keating. Monroe, Bogden, and Tuohey did not testify, nor was any explanation given why they did not do so? Baffa testified and denied that he told anyone representing Respondent Company on July 16, that they should discharge or refuse to employ Scott According to him, all that he told Bogden was that "Scott was suspended for non-payment of dues" and that he did not "tell him anything else " On cross-examination, however, he admitted that by his conversation with Bogden the latter "would understand that the Company was to live up to the contract and [that] Scott was not to work," and that after Scott paid his dues, "the company [was] privileged to rehire the men " On the entire record I find that Respondent Union on or about July 16, caused Respondent Com- pany to discharge or refuse to employ Scott because he failed to pay dues to Respondent Union. The sole remaining issue before me is whether there was in existence on July 16, 1954, a valid union-security agreement between the parties pursuant to which Scott was denied employment at the demand of Respondent Union If such an agreement existed, Scott's discharge was not violative of the Act and the General Counsel so concedes. On the other hand, if no such valid agreement was then in effect, it is equally clear that both Respondents violated the Act. 2Their failure to do so warrants "drawing an inference that [their testimony] if adduced would not have been favorable to Respondents " N L R B v 1Vaiiick & Schwalm Co, 198 F 2d 477, 483 (C A 3) ; Interstate Circuit v United States, 306 U. S 208, 225-226 , Wigmore, Evidence, Section 285, 288 (Third Edition 1940). 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is unquestioned, and the law is well settled, that the closed-shop provisions of the 1946 agreement "give preferential hiring treatment to members of the [Re- spondent Union and] exceed the limited union security provisions permitted under Section 8 (a) (3) of the Act.' 13 If, therefore, Scott's discharge was effectuated under those provisions, both Respondents must be found guilty as alleged in the complaint. As previously noted, however, Respondents contend that in 1948 they entered into an oral modification of those provisions so as to provide for union security only in accordance with the proviso found in Section 8 (a) (3) of the Act, and that their employment practices thereafter were maintained in accordance with that proviso Putting aside the legal effect, if any, to be given an oral deletion of the illegal union-security clause,4 on the entire record I am convinced and find that Respondents have not sustained the burden resting upon them 5 to establish that the basic contract was in fact orally purged of the illegal closed-shop provisions, and that a legal clause was substituted therefore. The only evidence offered by Respondents pertaining to the alleged deletion of the illegal clause from the basic contract was that given by Stephen Sherman, president of Respondent Union for 17 years He testified that the "gist" of a conversation he had in mid-July 1948 with Fred Heppiner, then the manager of Respondent Company, was as follows: "While we knew the clause existed, in as much as we had not exercised it up to the present, we had no intention of exercising it at any future date " Such meager testimony falls far short of establishing a deletion of the illegal clause. Nor was any explanation offered why, when supplemental written agreements modifying and extending the basic contract were thereafter executed on November 29, 1948, September 1, 1949, April, 1951, January 1, 1952, January 1, 1953, and December 18, 1953, no mention was made of the alleged purging of the closed-shop conditions imposed by the basic contract. Indeed, the supplemental agreements all proclaim that the basic contract "as supple- mented and amended" by the specified written agreements "shall be renewed and continued in all respects." [Emphasis supplied.] It is especially pertinent to ask why on November 29, 1948, only 4 months after the alleged oral deletion, when the basic contract was amended and extended to August 1949, no mention of the alleged deletion was made .6 Instead, that extension and modification agree- ment, like the others, specifically provided that the basic contract as theretofore supplemented and modified by specified written agreements "shall be renewed and continued in all respects by the parties until August 1949." [Emphasis supplied.] Even if it be assumed, arguendo, that the parties agreed to eliminate the closed- shop provision, no credible, probative testimony was offered that a valid union- security clause was agreed upon as a substitute. The only testimony in support of such a contention was Sherman's testimony that in his conversation with Heppiner in July 1948 he vaguely told the latter that they "would continue under the method that [they] were working under at that time, a more or less open-shop." Absent a valid union-security clause, Respondent Union could not cause Scott's discharge for nonpayment of dues, and Respondent Company could not discharge him therefore. American Pipe and Steel Corporation, 93 NLRB 54, George W. Reed, 94 NLRB 698. Because the union-security clauses in the contract between Respondent Company and Respondent Union were unlawful, Scott's discharge by Respondent Company for the reason that he was 9 months in arrears in his dues and not in good standing with the Respondent Union constituted discrimination with regard to his hire and tenure of employment, in violation of Section 8 (a) (3) of the Act, and served to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. Respondent Union, by causing Respondent Company to discriminate against Scott, violated 3 Seaboard Tee urinal and Refrigeration Company, 109 NLRB 1094, where identical pro- visions contained in another contract to which Respondent Union was a party were held to be violative of the Act 4 See National Malleable it Steel Casting Co , 99 NLRB 737, where, in a representation proceeding, the Board "held that an oral agreement to delete such provisions does not remove the infirmity so as to constitute the contract a bar " [Emphasis supplied ] s Construction and General Laborers Union, Local 320, 96 NLRB 118 e The conclusion that the parties never purged the basic contract of its patently illegal closed-shop provisions is substantiated by the fact that no evidence was offered that Respondents made any effort to inform the employees, for whose benefit the proviso was added to Section 8 (a) (3) of the Act, that any contrary condition of employment existed. Jandel Furs, 100 NLRB 1390 JERSEY CONTRACTING CORP. 685 Section 8 (b) (2) of the Act and by such conduct also restrained and coerced em- ployees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (b) (1) (A) thereof. In view of the foregoing findings, I find it unnecessary to consider the rebuttal con- tention advanced by the General Counsel at the hearing that the contract of Decem- ber 18, 1953, pursuant to which Scott was discharged, may not be relied upon as a defense because it was executed at a time when the Charging Union's petition for rep- resentation was pending before the Board (Mid-West Piping Supply Co., Inc., 63 NLRB 1060),1 and (2) Respondent's rejoinder thereto that, because the petition for representation just alluded to sought recognition for an alleged inappropriate unit, it was "lawful" to execute the contract of December 18, 1953 (William Penn Broad- casting Company, 93 NLRB 1104). IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth above, occurring in connection with the operations of Respondent Company, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since Respondents have engaged in unfair labor practices, it will be recommended that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that on July 16, 1954, and July 19, 1954, Respondent Company discriminated, and Respondent Union caused it to discriminate, with respect to the hire and tenure of employment of William Scott, thereby encouraging membership in Respondent Union and interfering with, restraining, and coercing Scott in the exercise of rights guaranteed by the Act. It will therefore be recommended that Respondent Company cease encouraging membership in Respondent Union by discharging or otherwise discriminating in regard to the hire and tenure of employ- ment of its employees at the illegal request of Respondent Union. It will be further recommended that Respondent Union cease encouraging membership therein by causing or attempting to cause Respondent Company to discharge or otherwise discriminate in respect to the hire and tenure of employment in violation of Section 8 (a) (3) of the Act. Since Scott has been rehired to his former position, no recommendation need be made concerning his reinstatement. However, as it has been found that Re- spondents are jointly and severally responsible for his discriminatory discharge, it will be recommended that they jointly and severally make him whole for any loss of pay he may have suffered by the payment to him of a sum of money equal to the amount he normally would have earned during the period of the discrimination against him , less his net earnings during that period. Having found that Scott was discharged and refused employment because of his failure to pay dues to Respondent Union which had arisen at a time when there was no valid contractual obligation to maintain membership therein as a condition of employment , and that Scott was coerced into making such discriminatory payment by Respondent Union's threats of loss of employment, it will be further recommended that Respondent Union make restitution to Scott of the dues required by it to be so paid in order for Scott to retain employment with Respondent Company.8 Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of Respondent Company occur in commerce as defined in Section 2 (6) and (7) of the Act. Respondent Local 976, International Long- shoremen's Association, Independent, and International Longshoremen's Association, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating with respect to the hire and tenure of employment of William Scott, Respondent Company encouraged membership in Respondent Union and there- by has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act. 7 See , however , the recent ruling of the Board in William D. Gibson Co , Division of Associated Spring Corporation, 110 NLRB 660, announced after the hearing herein was concluded 8 The Eclipse Lumber Company, Inc, 95 NLRB 46'4, 475. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing William Scott in the exercise of rights guaranteed in Section 7 of the Act, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By causing Respondent Company to discriminate against William Scott in violation of Section 8 (a) (3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing William Scott in the exercise of the rights guaran- teed in Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Anheuser-Busch, Inc. and International Union of United Brew- ery, Flour, Cereal, Soft Drink and Distillery Workers of Amer- ica, CIO, and Its Local 187. Case No. 14-CA-1190. May 10, 19-55 DECISION AND ORDER On September 23, 1954, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (5) and (1) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Re- spondent had not violated Section 8 (a) (3) and (1) of the Act, as alleged in the complaint, and recommended that the complaint be dis- missed with respect to those allegations. Thereafter the Respondent, the Charging Party, herein called Local 187, and Brewers and Malters Local No. 6, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Local 6,1 filed exceptions to the Intermediate Report and sup- porting briefs. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. On June 24, 1953, the Board certified Local 187 and Local 6, re- spectively, as the exclusive bargaining representatives in two separate units. The first unit covered substantially all of the production and maintenance employees in the Bevo building, including all of the 'Local G, iihich w.is not served with notice of. and did not participate in, the heating, was permitted limited intervention for the purpose of filing exceptions and a brief. 112 NLRB No. 91.