W. B. Jones Lumber Co., Inc.

W. B. JONES LUMBER COMPANY, INC. 415 W. B. Jones Lumber Company, Inc. and Don F. Tooze Lumber and Sawmill Workers' Union, Local No. 2288, AFL and Don F. Tooze. Cases Nos. 21-CA-2116 and ^1-CB-671. October' 14,1955 DECISION AND ORDER On July 18, 1955, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled consolidated proceedings, find- ing that the Respondents had engaged in and were engaging in certain.' unfair labor practices and recommending that-the Respondents cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Union filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The' rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record I in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner,' except as modified herein? ORDER Upon the entire record in these cases, and pursuant to Section' 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. W. B. Jones Lumber Company, Inc., its officers, agents; succes- sors, and assigns, shall : A. Cease and desist from : (1) Encouraging membership of its employees in Lumber and Saw- mill Workers' Union, Local No. 2288, AFL, or any other labor or- ganization, or discouraging membership in any labor organization, by discriminatorily discharging its employees or in any other manner discriminating against them in regard to their hire, tenure, or any other , term or condition of employment, except as authorized by Section 8 , (a) (3) of the Act. I We find no merit in the contention of the Respondent Union that the record does not contain sufficient reliable evidence to establish that the operations of the Respondent Employer satisfy the Board 's minimum standards for the assertion of jurisdiction. See Amalgamated Meat Cutters and Butcher Workmen of North America (A. F. L.), Local No 421, 81 NLRB 1052. 2 The Trial Examiner recommended that the Respondents be ordered to cease and desist from in any like or similar manner infringing upon the rights of employees as guaranteed by the Act. Because we believe that a discriminatory discharge goes to the very heart of the Act and because we believe that the Respondents' repeating the commission of the violations' involved herein in the future may be anticipated by reason of the conduct of the,-Respondents herein , we shall , order that Respondents cease and desist from in any' manner infringing upon the rights 'of employees as guaranteed by the Act. N. L. R. B. v. Entwistle Mfg Co, 120 F. 2d 532, 536 (C. A. 4). 114 NLRB'No. 79. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement 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) Offer to Don F. Tooze immediate and full reinstatement to his former or a substantially equivalent position without prejudice to'his seniority and other rights and privileges, and jointly and severally with Lumber and Sawmill Workers' Union, Local No. 2288, AFL, make him whole in the manner and according to the method set forth in section V of the Intermediate Report entitled "The Remedy." (2) Preserve and make available to the Board or its agents upon re- quest, for examination and copying, all payroll records, social-security payment records, -timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment underthe terms of this Order. (3) Post in conspicuous places, including places where notices to employees are customarily posted, at its principal place of business in Los Angeles, California, copies of the notice attached hereto marked, "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region of the Board, shall, after being signed by a duly authorized official representative of the Company, be posted by it immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable, steps shall be taken by the'Company to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the said Regional Director in writing, within ten (10) days from the date of this Order, what steps the,said Company has taken to comply with the foregoing. II. Lumber and Sawmill Workers' Union, Local No. 2288, AFL, its officers, representatives, agents, successors, and assigns, shall : A. Cease and desist from : (1).,Causing or attempting to cause W. B. Jones Lumber Company, Inc., or any other employer, except as authorized by Section 8 (a) (3) of the Act, to discharge employees or in any other manner dis- 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the woi ds "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." W. B. JONES LUMBER' COMPANY, INC. 417 criminate against them in regard to their hire, tenure of employment, or any term or condition of employment, because such employees are not members of the Union. (2) In any other manner restraining or coercing employees of W. B. Jones Lumber Company, Inc., or of any other employer, in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring membership in a'labor or- ganization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : • (1) Notify W. B. Jones Lumber Company, Inc., Los Angeles, Cali- fornia, and Don F. Tooze, in writing, that it has no objection to the employment by the Company of the said Don F. Tooze and request the Respondent Company to offer Don F. Tooze immediate and full reinstatement to his former or substantially equivalent position with- out prejudice to his seniority and other rights and privileges. (2): Jointly and severally with W. B. Jones Lumber Company, Inc., make whole Don F. Tooze in the manner and according to the method set forth in section' V of the Intermediate, Report entitled "The Remedy." (3) Post in conspicuous places, including places where notices to members are customarily posted, at its office and its usual membership meeting place, copies of the notice in the form attached hereto marked "Appendix B.",A Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region of the Board, shall, after being'duly signed by a duly authorized `representative of the said Union, be posted by it immediately upon receipt thereof and maintained by.it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall bo taken by said Union to'insure,that said no- tices are not altered, defaced, or covered by any, other material. (4) Forthwith mail copies of the said notice marked "Appendix B" to the said Regional Director, after such copies have been signed as provided in paragraph numbered II, B, (3) of this Order, for posting at the place of business of the Company, if it so agrees. - (5) - Notify the said Regional Director in writing, within ten (10) days from the date of this Order, what steps the said Union has taken to comply with the foregoing. - * In the event that this Order is enforced by a decree of a' United States ' Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NoT encourage membership by our employees in Lumber and Sawmill Workers' Union, Local No. 2288, AFL, or any other labor organization, or discourage membership in any labor organization, by discriminatorily discharging employees or in any other. manner discriminating against them in regard to their hire, tenure of employment, or any term or condition of em- ployment,. except as authorized by Section 8 (a) (3) of the Na- tional Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor, organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the National Labor Relations Act. WE WILL offer Don F. Tooze immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges. WE WILL jointly and severally with Lumber and Sawmill Work- ers' Union, Local No. 2288, AFL, make Don F. Tooze whole for any loss of pay he suffered as a result of discrimination against him. All of our employees are free to become, 'remain, or refrain from becoming, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. W. B. JONES LUMBER COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. W. B. JONES LUMBER COMPANY, INC. 419 APPENDIX B NOTICE TO MEMBERS OF THIS UNION AND EMPLOYEES OF W. B. JONES LUMBER COMPANY, INC. i 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 give notice that : WE WILL NOT cause, or attempt to cause, W. B. Jones Lumber Company, Inc., or any other employer, except in accordance with Section 8 (a) (3) of the National Labor Relations Act, to dis- charge employees or in any other manner discriminate against them in regard to their hire, tenure of employment, or any term or condition of employment, because such employees are not mem- bers of Lumber and Sawmill Workers' Union, Local No. 2288, AFL. WE WILL NOT in any other manner restrain or coerce employees of W. B. Jones Lumber Company, Inc., or of any other employer, in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or, protection, and to refrain from any or all of such activities, except to the extent that such right may be affected',by an agree,- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL jointly and severally with W. B. Jones Lumber Com- pany, Inc., make Don F. Tooze whole for any loss of pay he suf- fered as a result of discrimination against him. LUMBER AND SAWMILL WORKERS' UNION, LOCAL No. 2288, AFL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On November 18, 1954, Don F. Tooze filed two charges with the National Labor Relations Board ( also designated herein'as the Board ), one in Case No. 21-CA-2116 against the Respondent, W. B. Jones Lumber Company, Inc. (also designated herein as the Company ), and the other in Case No 21-CB-671 against the Respondent, Lumber and Sawmill Workers ' Union, Local No. 2288, AFL (also referred to herein as the Union or Local 2288 ). The cases were subsequently consolidated for hearing 387644-56-vol. 114-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursuant to an order entered by the Regional Director of the Twenty-first Region of the Board. On April 21, 1955, the General Counsel of the Board duly issued a complaint based upon the charges, alleging that the Company and the Union had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, as amended (61 Stat. 136-163), referred to herein as the Act. Each of the Respondents has been duly served with copies of the charge filed against it and of the complaint and the order consolidating the cases. With respect to the alleged unfair labor practices , the complaint charges, in effect, that on or about November 17, 1954, Local 2288 informed the Company that Tooze was not a member of the Union in good standing and demanded that he be dis- charged for reasons other than a failure to pay dues and initiation fees uniformly required by Local 2288 of its members; that the Company discharged Tooze on or about November 17, 1954, in compliance with the demand ; that on or about the said date, and thereafter, the Union refused to give Tooze "clearance" for employ- ment with the Company although he "offered to pay and tendered initiation fees uniformly required of union members"; that on or about November 19, 1954, the Company failed and refused to reinstate Tooze unless he presented to the Company `',`written,, clearance from' Respondent Union or an order from the National Labor Relations Board that he should be reinstated"; that the conduct attributed to the Company, as described above, violated Section 8 (a) (1) and (3) of the Act; and that-the•Union by its conduct set out above violated Section 8 (b) (1) (A) and (2) of the said Act. The Company and the Union filed separate answers. That of the Company, in effect, denies the commission of the acts attributed to it in the complaint and, as a separate defense, alleges that. Tooze was a satisfactory employee; that on or about November 17, 1954, the Union informed it that Tooze was no longer a member of the organization in good standing and ineligible for employment with the Company; that the Union "ordered",the Company to discharge Tooze, stating that unless he was dismissed, the organization would cause a picket line to be placed at the Com- pany's premises; that the Company discharged Tooze "to avoid this eventuality" and ^ because Tooze, was no longer a member of the Union in good standing; and that the Company "has been ready and willing to reinstate" Tooze to its employ. The Union's answer, in material substance, denies the commission of the unlawful conduct imputed to Local 2288 in the complaint, and affirmatively alleges that the Board is without jurisdiction over this proceeding because the Company "is not engaged in a business affecting commerce." Pursuant to notice duly served upon all parties, a hearing was. held before me, as duly designated Trial Examiner, on May 9, 10, 25, 26, and 27, 1955, at Los Angeles, California. The General Counsel, the Union, and the Company were each represented by counsel and participated in the hearing. All parties were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, submit oral argument, and file briefs. After the close of the evidence the Company and the Union moved to dismiss the, complaint. • Decision was reserved on the motions. They are hereby denied upon the basis of the applicable findings and conclusions set out below. The Union has filed a brief which has been read and considered. The other parties have not filed briefs. Upon the entire record in the case, and from 'my observation of the witnesses, I make the following: ` FINDINGS OF FACT 1. JURISDICTION . The Respondent is a California corporation. It operates a lumberyard in Los Angeles, California, where it is engaged in'the business of selling lumber at retail and wholesale. The Company employs between 15 and 35 persons, the number varying with fluctuations in its volume of business. In 1954, all of the goods sold by the Respondent were delivered by it to customers in California, with the exception of products valued at $34,260.71, which were shipped from the Company's place of business to points in Nevada. These direct interstate shipments, standing alone, are insufficient for the assertion of jurisdiction under criteria promulgated by the Board in Jonesboro Grain Drying Cooperative, 110 NLRB 481. The evidence, however, presents another basis for the assertion of jurisdiction under standards established by the Jonesboro case. During the calendar year 1954, the Company sold and delivered products valued in the aggregate in excess of $200,000 to the concerns listed below, each of whom, during the said year, shipped W. B. JONES LUMBER COMPANY, INC. ' 421 goods valued in excess of $50,000 1 from points within the State of California to places in other States .2 The following tabulation sets forth the names of the Company's 1 Richard Smith , office malinger of Mississippi Glass Company , one of the Respondent Company's customers , testified to the value of his firm's interstate shipments in 1954, as totalled from the concern's invoices The transcript of his testimony reflects him as testifying that the value was $32.415 68. These figures do not correspond to notes I made while Smith testified According to my notes, Smith testified that the value was $324,015.68. After Smith stated the figures, the General Counsel offered a tabulated summary, prepared by Smith , of his firm's interstate shipments in 1954 and of the value of the products so shipped . The proffered exhibit was identified as General Counsel's Exhibit No. 33. The exhibit specified the sum of $324 ,015 68 as the total value of the ship- ments . Upon the Union's objection , the exhibit was rejected . On July 5 , 1955, I issued an order requiring the parties to show cause on July 11, 1955 , why the transcript should not be corrected A copy of the order to show cause was duly served upon each of the parties The Company has made no return to the order to show cause . The Union made iio formal return , but, through its counsel , has addressed a letter to me, dated July 7, 1955, -taking the position in effect that a Trial Examiner has no authority to correct a transcript, and that in the absence of any motion by the parties or a stipulation for the correction of the transcript, the "Order to Show Cause is improvidential . and should be withdrawn " The Union's position is without merit. Section 102 35 of the Board's Rules and Regulations imposes the duty upon a Trial Examiner assigned to the hearing of a case "to inquire fully into the facts," and, among other things, empowers him to "dispose of procedural requests or similar matters " ; to "call, examine and cross-examine witnesses, and to introduce into the record documentary and other evidence" , and "to take any other action necessary under the foregoing and authorized by the published Rules and Regulations." It may be noted that the Union 's letter advances no claim that the transcript accurately reflects Smith's testimony. The General Counsel has filed a return, requesting that the transcript be, corrected by substituting the figures $324,015 68 for the figures $32,415 68 in Smith's testimony or, in the alternative, that the ruling in evidence Appended to the Geneial Counsel's ietuin is an affidavit by Smith to the rejecting General Counsel's Exhibit No 33 be withdrawn and that the exhibit be received in evidence. Appended to the General Counsel's return,is an affidavit by Smith,to,the effect that he has no, "present recollection of the exact amount" to which he testified, ,but that he testified, to the amount which appeals in the summary (General Counsel's Exhibit'No 33) which he prepared, and that the sum of $324,015 68 which appears therein is the "correct amount" of the " sales as evidenced by the invoices summarized in the document." There is no doubt that the transcript inaccurately quotes Smith with 'respect to the figures he gave Accordingly, the transcript is hereby corrected by deleting the figures $32,415 68 in -Smith's testimony, at, line 3, page 293, of the transcript and sub; stituting therefor the figures $324,015 68 The order to show cause, the letter dated July 7, 1955, from counsel for the Union, the General Counsel's icturn, and Smith's affidavit are hereby made part of the record. The General Counsel's application that the ruling rejecting General, Counsel's Exhibit No. 33 be withdrawn is denied However, as Smith's affidavit refers to the exhibit , and since both should be read together for pur- poses of clarity, I hereby grant the General Counsel's iequest that the exhibit be received in evidence, but it is received for the single purpose of serving as an explanatory supple- ment to Smith's affidavit., 2In its brief, the Union contends that the testimony of vat tons witnesses relating to the dollar volume of interstate shipments of a number of the customers should be dis- regarded as nonpiobative. In suppoit of its position, the Union cites N. L. R B. v Haddock-Engineers, Limited, 215 F. 2d 734 (C A 9) The contention in effect reiterates objections made by the Union at the hearing to testimony given by a number of the witnesses Each of the witnesses upon whose testimony findings, concerning inteistate shipments,are based, holds either a supervisory, administrative, or fiscal position with-, the customer con cerni ng' whose shipments he testified It would be an idle act to de- termine what portions, if any, of the testimony would be nonprobative in a proceeding arising under another law, for the Act contains its own evidentiary guide Section 10 (b) of the Act provides that unfair labor practice 'proceedings "shall, so far as practicable, he conducted in accordance with the rules of evidence applicable to the district courts of the United States . . [Emphasis supplied ] Thus, by the very terms of the Act, adherence to evidentiary rules is not always required . N. L R B v. Hunter Engineer- ing Co., 215 F. 2d 916 (C A 8) , N L R B v Local 1418, General Longshore Workers, International Longshoremen's Association, A. F. L, 212 F. 2d 846 (C. A 5). Plainly, this is true where it would be impracticable to adhere to them. As the record sufficiently reflects the objections, the underlying reasons for the rulings , and the testimony given,,,it is unnecessary here to collect and analyse the many variable situations involved Suffice 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customers mentioned above,3 and the value of the products sold to' each by the Company in 1954: Sprague Engineering Corporation -------------------------------- $9, 069. 13 Johnston Pump Company______________________________________ 8, 197. 70 Stauffer Chemical Company------------------------------------ 10, 220. 85 Wolf Range & Manufacturing Company-------------------------- 6, 803.33 Mission Appliance Company----------------------------------- 14, 415. 13 Hammond Manufacturing Company_____________________________ 18 , 662. 20 Mississippi Glass Company------------------------------------- 30,028.40- Southern Heater Corporation ___________________________________ 8,274.67 C. & M. Manufacturing Company ------------------------------- 26, 734. 94 Ducommon Metals & Supply Company--------------------------- 19, 705. 88 National Supply Company___________ __________________________ 20, 801.55 Columbia Pictures Corporation --------------------------------- 11, 531.97 Chrysler Corporation ------------------------------------------ 85010.35 Phelps Dodge Copper Products Corporation _______________________ 4, 192. 64 Morris D. Kirk & Sons, Inc------------------------------------- 14 , 263. 83 Total ------------------------------------------------- 210,912.57 I find that the Company's operations affect interstate commerce within the mean- ing of the Act, that the Board has jurisdiction over this proceeding , and that the assertion of jurisdiction herein will effectuate the policies of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union admits persons employed by the Company to membership and is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory findings The president of the Company is named William B. Jones. He supervises the firm's operations . One of his managerial subordinates is the yard superintendent, Alex Hardy. Hardy directs the work of employees in the lumberyard and is vested with authority to hire and discharge employees subject to his supervision . Both Jones and Hardy are supervisors within the meaning of the Act. Local 2288 has collective-bargaining relations with a group of lumber concerns described by Jones in his testimony as "the big five." The Union and the group customarily negotiate collective-bargaining agreements . The Company is not a mem- ber of the negotiating group, but adopts and follows whatever contract provisions result from the negotiations . The evidence does not specify what form such adop- tion takes nor does it describe the provisions of any collective -bargaining contract. There is thus no proof that at any time relevant to this proceeding the Company was a party to a valid union-security agreement requiring membership in Local 2288 as a condition of employment. During the early part of 1954, Don F. Tooze was in the employ of a concern in Oakridge, Oregon. While so employed, he was a member of a labor organization described in the record (General Counsel's Exhibit No. 5) as United Brotherhood of Carpenters and Joiners , Union No. 2453 ( also referred to herein as Local 2453). The record suggests that Local 2453 is affiliated with an organization known as the Willamette Valley District Council ( described below as the Council ), and that the latter exercises-disciplinary powers.over members of Local 2453. In March 1954, the Council brought a disciplinary proceeding against Tooze 'be- fore one of its committees upon charges of what is commonly called dual unionism it to say, that upon foundations reflected in the record, the terms of Section 10 (b) warranted the admission of the testimony in the form given The Union apparently misreads the Haddock case in seeking to apply it here Substantially, the evidentiary point at issue there was whether a written admission bearing on commerce facts, made by a respondent employer , was binding upon a respondent union The phrase "so far as practicable," as used in Section 10 ( b), was mot involved in the case , and the court had no occasion either to apply or Construe`t. In shoit , the Haddock case is inapposite 3 The record contains evidence pertaining to,sales made by the Company to other cus- tomers , and to the' volume of their business It is unnecessary to set out details' of such evidence, inasmuch as the Company 's sales to, and the interstate shipments made by, the customers listed in the tabulation, without reference to any others , satisfy criteria for the assertion of jurisdiction described in the Jonesboro case. W. B. JONES LUMBER COMPANY, INC. 423 As a result of the proceeding, he was "placed on probation " for 3 years and subjected to various disabilities , including ineligibility "for a withdrawal card or clearance card for a period of three years." The terms of his probation required him to "pay dues regularly and remain in good standing ," and provided that upon violation of such terms, he be "forever debarred from membership and all rights and benefits of the United Brotherhood of Carpenters and Joiners of America." Tooze left his employment in Oakridge in April 1954 . He thereafter held a mis- cellany of jobs in Oregon for brief periods and then came to Southern California. In June 1954 , he fell into arrears in the monthly dues payments required by Local 2453 of its members , and as of November 1954, his arrearages totalled $ 17.25. Tooze entered the Company's employ as a forklift operator on October 28, 1954. He was hired by Superintendent Hardy and thereafter worked under, the latter's super- vision in the Company's lumberyard . When he was hired, Tooze was not a member of Local 2288, nor has he since secured membership. A business representative of Local 2288 frequently visits the Company's lumber- yard for such purposes as ascertaining whether any new men had been employed; whether these were members of Local 2288, and whether employees were in arrears in their dues. For some 4 years prior to Tooze's employment by the Company the representative of Local 2288 who performed these functions was a man named John Matzko. It was Matzko's practice to come to the yard each week, usually on Wednesday, and discuss matters related to the union membership status of em- ployees, customarily transacting his business with Hardy. On November 3, 1954, Matzko came to the yard and introduced himself to Tooze as a representative of Local 2288 . Apparently proceeding on the assump- tion that Matzko wished to look into his union membership status, Tooze told the union representative about the charges brought against him in Oregon and that he had been "found guilty" of them. After some discussion of the charges , Matzko said ,that.-,he would write to Local 2453 or the Council about the matter, and that he would' "have to pull CTooze] off the job," if what'Tooze •had told him turned out to be accurate. Later that day, Tooze went to the office of Local 2288 and spoke to another of its representatives, a man named Knight. Tooze gave Knight the same account of the disciplinary proceeding as he had given Matzko, stating , also, that he had "never received any official notice" that he had been found guilty of the charges or of any penalties imposed upon him. Matzko came into the office during the conversation. Knight told Matzko to give Tooze a work permit for December, and informed Tooze that he would write to Local 2453 to "find out just what the situation was." Matzko told Tooze to return at a later date for the work permit. Tooze continued to work for the Company after his conversation with Knight. On or about November 12, 1954, he called at the union -office for the purpose of se- curing the work permit.4 He was accompanied by another employee of the Com- pany, named Robert Oyster, who had also recently been hired and desired a work permit. Matzko was present during the conversation that ensued between Knight and Tooze. Knight declined to issue the work permit to Tooze, telling the latter: "We couldn't do much for you, Tooze. You are not a member in good standing ." Knight showed Tooze three documents . One of these was a letter dated November 12, 1954, addressed to Knight by Local 2453, describing Tooze's,dues arrearages. An- other •was a letter dated November 8, 1954, addressed to Knight by the Council. This letter describes Tooze as "a perpetual trouble maker so far as our organization is concerned," and summarizes the charges against Tooze and the results of the dis- ciplinary proceeding. The third document purports to contain an excerpt from the 'minutes of a meeting of the executive committee of the Council , setting forth the report of the trial committee which had heard the charges against Tooze. Tooze read the documents and made an offer to Knight to pay the dues owed to Local 2453, and "to join the union over again ." Knight rejected the offer, telling Tooze that he "couldn't become a member twice ." Tooze asked , "Doesn't the Taft-Hartley Law protect me?" Knight walked away, saying "Don't talk Taft-Hartley Law to me." That ended the conversation. Unlike Tooze, Oyster was given a work permit. Matzko spoke to Tooze on November 17 while the latter was at work in the Company's yard The Union's agent said that he was "going to have to pull CTooze] 4 Tooze estimated that this visit was on the Friday of the week following the one in which the first conversation occurred According to this estimate, the date of the sec- ond visit would be November 12, 1954 However, since on this occasion, Knight showed him a letter from Local 2453 bearing that date, it is not unlikely that the second visit took 'place somewhat later than Tooze 's estimate indicates .- * In any event , the precise date does not affect the concluding findings reached below. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off the job" and would talk to Jones about the matter. Tooze then sought out Hardy and, in Matzko's presence, told the superintendent, that Local 2288 "was pulling [him] off the job." Hardy asked Matzko for the reason and the latter replied that Tooze was not a member of Local 2288. Hardy, also inquired of Matzko whether Tooze could complete the day's work. The union representative responded that Tooze would "have to leave right then." Hardy complained that he would have to pay Tooze for a full day's work and Matzko stated that would not be neces- sary. During the course of the conversation Hardy asked Matzko what would happen if Tooze were retained, and Matzko stated that Local 2288 would "put a picket line around the yard." The upshot of the discussion was that Hardy acquiesced in Matzko's demand and discharged Tooze.5 On the following day, Tooze telephoned Hardy and asked the superintendent if Jones would reinstate him in the event that he "got squared away with the union." Hardy replied, "Yes, Don, get something in writing either from the union or from the National Labor Relations Board and come back to work." Hardy also assured NTooze that he had not been discharged for "any infraction of the rules," and that all that the Company wanted was the "writing" mentioned above. Tooze came to the yard the following morning (on November 19) and told Hardy that he was ready to report for work. The superintendent inquired whether Tooze "had anything in writing from the union or the National Labor Relations Board." Tooze replied in the negative, but produced a copy of the Act and offered it to, Hardy to read. The superintendent declined to read it. The conversation ended with a statement by Tooze to the effect that there was a possibility that he would file a charge against the Company with the Board. On one occasion or another (the record does not specify the date), Hardy told Jones that Tooze "was a good man he [Hardy] wanted to keep." Jones expressed a wish to see Tooze "to see if we can get it straightened out," and when Tooze came to the Company's office on or about November 24 to pick up his paycheck, Hardy took him to see Jones. During the course of the conversation that followed, Jones in effect expressed a willingness to reemploy Tooze and advised the latter to pay whatever dues he owed and to eliminate his difficulties with Local 2288. Tooze informed Jones that he had already offered to pay the dues arrearages and that he would follow Jones' suggestions Tooze left Jones and proceeded directly to the Union's office. He asked an office employee there if he could see Knight and was informed that the latter was indis- posed. Tooze then told the employee that he had come to pay his "back dues," but she stated that she could not accept them. At this point Knight emerged from his office and approached the others. Tooze told the office employee that he "wanted to join the union over again." Knight interposed and said that Tooze was "already .a member of the union" and "couldn't become a union member twice." Tooze protested that "the constitution and bylaws" did not preclude acceptance of his, offer, to which Knight replied that Tooze was "already a member of the union but . [had] no withdrawal card," and that Local 2288 could not accept dues owed by Tooze to "another union." In addition to his offer to pay the dues he owed Local 2453, Tooze sought to join Local 2288, for he made an offer to Knight to pay the initiation fee and 2 months' dues in advance required by the Union of new members, but Knight rejected the offer. At the time he made this offer, Tooze had "far more" money in his hand than the amount he owed Local 2453. (In his undisputed account of the conversation, Tooze did not specify how much he had in his hand.) Knight also told Tooze that the latter "should have gotten in touch" 6 Hardy and Tooze gave somewhat differing versions of the conversation between the former and Matzko. The versions are not significantly dissimilar, and I have based findings on a composite of both. It may be noted that, whatever the differences, both accounts are in substantial accord that Matzko demanded that the Company discharge Tooze because he was not a member of Local 2288, and that the Company complied with the demand. 6 Tooze and Tones were in substantial accord in their testimony concerning the features of the conversation described above There are some variances between them concerning other aspects of the meeting, relating principally to whether Jones read the documents Matzko had previously given Tooze (It is undisputed that Tooze handed the papers to Tones.) The differences need not be resolved. A resolution would not affect the con- clusions reached below since Tooze had already been discharged and, in effect, denied unconditional reinstatement by Hardy on two occasions some days earlier. It is evident that a determination that during the conversation Jones read the papers or was familiarized with Tooze's difficulties in Oregon would not affect whatever liabilities, bad already been incurred by the Company. W. B. JONES LUMBER COMPANY, INC. 425 with him before Tooze filed an unfair labor practice charge against Local 2288. With that the conversation ended and Tooze left the office? B. Concluding findings As a preface to the conclusions to'be drawn from the evidence, it is appropriate to sift out and dispose of a number of features of the record which do not materially affect the results required by the operative facts in this proceeding. First, the fact that Matzko threatened to place a picket line at the Company's yard if Tooze were not discharged has no bearing on the Company's liability for the discharge. The Company may not legally justify the dismissal on the ground that it feared reprisal at the Union's hands if it did not comply with Matzko's demand. N. L. R. B. v Lloyd A Fry Roofing Co, 193 F 2d 324 (C. A. 9), and cases cited. Second, the offers to reemploy Tooze, whether made by Hardy or Jones, do not in any way diminish the Company's liability for any discrimination it practiced against Tooze. The offers of reinstatement were not unconditional, but, on the contrary, were coupled in practical effect, if not in precise terms, with the condition that he secure the sanction of the Union for his reinstatement or, as an alternative (voiced by Hardy) an order from the Board directing the reinstatement. Because of the conditions, the offers were actually tantamount to unlawful denials of reinstatement Third, in its brief, Local 2288 deals at some length with the disciplinary proceeding against Tooze in Oregon, his dues arrearages there, and the right of Local 2288 to refuse to accept the dues Tooze owed to another union 8 But what the brief does not make clear is how all this endowed Local 2288 with any legal right to demand that the Company discharge Tooze. It is well settled that a labor organization may validly cause an employer to discharge an employee because of nonmembership in the union only if the dismissal is authorized by an applicable agreement, valid under Section 8 (a) (3) of the Act, making membership in the labor organization a condition of employment. Radio Officers' Union etc v. N. L R. B, 347 U. S. 17. The burden of justifying the discharge as a lawful application of a valid union-security agreement is upon the Respondents. Construction and General Laborers Union Local 320, et al., 96 NLRB 118, 119. Neither Respondent presented evidence of such. an agreement and neither relies upon one to justify the discharge. It is evident that none exists.9 The nub of the matter is that Tooze's difficulties in Oregon, his dues arrearages there, and the right of Local 2288 to refuse to accept payment of such dues, afford no abso- lution for the Union's conduct in seeking Tooze's discharge. Fourth, in oral argument at the hearing the Company took the position that the discharge did not violate the Act because the only reason given by Matzko was that Tooze "had not paid his dues." This view of the reason is not quite accurate, for the reason given by Matzko to Hardy, according to the latter's testimony, was that "Tooze was not in the union and could not work." Be that as it may, what the Company's .version of the reason implies is that the Union had an unrevealed motive for demand- ing the discharge, namely, that Tooze was persona non grata to Local'2288 because of his union difficulties in Oregon. In an effort to absolve itself of liability, the ° Tones gave undisputed testimony to the effect that either while Tooze was in his office or shortly before, he (Jones) spoke to Knight on the telephone, and that the latter agreed that all Tooze had "to do is' pay those back dues" in order to return to work It is evident that Knight changed his mind at one point or another Since it would not affect the concluding findings set out below, it need not be determined whether the filing of the charge against the Union with the Board was a factor in Knight's rejection of any of Tooze's offeis. "The claim is also made in the Union's brief that Tooze "had been expelled from the union" because of his dues delinquency. The brief does not make cleat at the point in question whether the "union" referred to is Local 2453 or United Brotherhood of Carpenters and Joiners of America Actually, these is no evidence that Tooze had in fact been expelled from either, but, in any event, as will appear, whether such expulsion took place does not affect any issue in this proceeding 9 Even if a valid union-shop agreement between the Company and Local 2288 had been in existence, the discharge, and the Union's role in it, would have been unlawful. Where an applicable valid union-security agreement exists, Section 8 (a) (3) immunizes an employee from discharge, because of nonmembership in the contracting union, for a period of 30 days from the commencement of his employment Tooze was discharged within the 30-day peiiod Thus, putting aside the plain fact that Local 2288 barred Tooze from membership, the existence of a valid union-shop agreement would not have the 'effect of validating either the discharge or the Union's demand for the dismissal. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company harnesses its conception of what Matzko told Hardy to certain language of Section 8 (a) (3). That section contains three provisos which follow the language prohibiting discrimination. The first in effect carves out an exception validating dis- crimination based upon the application of a lawful union-security agreement. The remaining provisos read: "Provided further, that no employer shall justify any dis- crimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership leas not available to the employee on the same terms. and conditions--generally applicable to other mem- bers,-or (B)-if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retain- ing membership." It is unnecessary to speculate whether Hardy believed that Tooze was "not in the union" because of a failure by him to pay dues to that organization or for some other reason, nor is it necessary to determine whether the Company should have gone farther than it did in inquiring into the Union's motive and whether it had good reason to conclude that all that was behind the organization's attitude toward Tooze was a mere failure by him to pay "periodic dues" to Local 2288. The decisive point is that the provisos are inapplicable to the facts in this proceeding. The quoted langauge, as the Board has held, "spell[s] out two separate and distinct limi- tations on the use of the type of union security agreements permitted by the Act" (Union Starch and Refining Company, 87 NLRB 779, 783, enfd. 186 F. 2d 1008 (C. A. 7) ). The Company does not rely upon a valid union-security agreement to justify the discharge. Hence, the provisos have no bearing on any issue in this case, and afford no defense to the Company.'° The operative facts bearing on the question of the legality of the discharge are clear. The sum of the matter is that on November 17, 1954, the Union demanded of the Company that Tooze be discharged on the ground that he was not a mem- ber of Local 2288, ii that the Company complied with the demand and discharged Tooze om.November;l7, 1954,,because he.was not,a member,of,the Union; that the, discharge was not authorized by the terms of a valid union-security agreement; that the Company because of the Union's demand, described above, has since refused to give Tooze unconditional reinstatement to his position; that by discharging Tooze and refusing to reinstate him, the Company discriminated against him and violated Section 8 (a) (1) and (3) of the Act; that, as a result of its demand, the Union caused the Company to discriminate against Tooze in violation of Section 8 (a) (3) of the Act; and that the Union thereby violated Section 8 (b) (1) (A) and (2) of the Act. The complaint alleges as separate violations of Section 8 (b) (1) (A) and (2), respectively, that the Union "failed and refused to give .. . Tooze clearance" for employment with the Company. The allegation is amply supported by the evidence. It is clear that Local 2288 arrogated to itself the right to determine whether the Company could employ Tooze. The Union in effect informed Tooze as early as November 3, 1954, of its power to veto his employment when Matzko told the for- mer that he would "have to pull [him] off the job," if Tooze's description of his diffi- culties in Oregon turned out to be true. Plainly, at least from the time Matzko spoke to Tooze on that date, the latter believed that he would not be able to work for the Company without the sanction of Local 2288. (The fact that Tooze was dis- charged' on November 17 is ample evidence that the belief was, justified.) Tooze sought that sanction, in effect when he requested Knight, on or about November 12, 10I deem it unnecessary to make findings concerning the Union's real motive for raising barriers to Tooze's employment. It is enough that the reason given Haidy by Matzko was that Tooze was not a member of the Union, that the Company based its dismissal on that reason (as the Company's answer in effect concedes), and that the discharge was not grounded upon the application of a valid union-security agreement. In that posture of the evidence, whatever hidden motives the Union had for its conduct cannot affect the Company's responsibility for the discrimination it practiced against Tooze. Construc- tion and General Laborers Union Local 320, et at, 96 NLRB 118, 119 11 The Union takes the position in its brief "that there is no proof that Matzko held any representative capacity with the Respondent Union to bind it by his actions." The contention lacks merit. On that score, one may note Superintendent Hardy's account of his dealings with Matzko over a period of some 4 years prior to Tooze' s dismissal, and the undisputed evidence of Tooze's conversations with Knight and Matzko in the Union's office. In short, there is ample evidence that Matzko's demand for Tooze's discharge was at least within the apparent scope of the authority vested by the Union in Matzko. Such apparent,,authorityas,enough to bind the Union. See Restatement, Agency, Sees. 219, 228, 233-237; Acme Mattress Co., 91 NLRB 1010, enfd. 192 F. 2d 524 (C. A. 7). W. B. JONES LUMBER COMPANY, INC. 427 1954, to give him a work permit, and when he offered on or about November 24, 1954, to pay Knight the dues and intiation fees required by Local 2288 of new members or, in other words, to join Local 2288. Knight's refusal to issue the per- mit and his rejection of Tooze's offer to join Local 2288 were in effect a denial by the Union of its sanction for Tooze 's employment by the Company . The natural tendency of the Union's conduct in the premises was to restrain and coerce em- ployees in the exercise of guarantees accorded them by Section 7 of the Act. More- over, in the light of the evidence as a whole, such conduct was tantamount to an at- tempt to cause the Company to discriminate against Tooze in violation of Section 8 (a) (3). Accordingly, the refusal by the Union , on or about November 12 and 24, 1954, as found above, to give its sanction for Tooze's employment violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The respective activities of the Respondents set forth in section III, above , occurring in connection with the operations of the Company described in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Company has engaged in unfair labor practices violative of Section 8 (a) (1) and (3) of the Act, and that the Union has engaged in unfair labor practices •iri violation of Section 8 (b) (1) (A) and (2 ) of the said statute. In view of the findings, I shall recommend that the Respondents cease and desist from their respective unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. As it has been found that the Company discharged Don F. Tooze on November 17, 1954, and subsequently refused to reinstate him, that such discharge and refusals to reinstate violated Section 8 (a) (3) of the Act, and that the Union caused the Company to discharge Don F. Tooze and to refuse to reinstate him in violation of Section 8 (a) (3), I shall recommend that the Company offer Don F. Tooze immedi- ate and full reinstatement to his former or a substantially equivalent position,13 without prejudice to his seniority and other rights and privileges , and that the Company and the Union jointly and severally make the said Don F. Tooze whole for any loss of pay he may have suffered by reason of the Company's discrimination against him , by payment to him of a sum of money equal to the amount of wages he would have earned, but for his discharge , between November 17, 1954, and the date of a proper offer of reinstatement to him as aforesaid . Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the date of the discharge to the date of a proper offer of reinstatement. The quarterly periods shall begin with the respective first days of January, April, July, and October . Loss of pay shall be determined by deducting from a sum equal to that which Don F. Tooze normally would have earned, but for the discrimination, in each such quarter or portion thereof, his net earnings ,14 if any, in any other employment during that period . Earnings in one quarter shall have no effect upon the back-pay liability for any other quarter. Both the Company and the Union will be required, upon reasonable request, to make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay and to the order for reinstatement. 13 Section 8 (b) (1) (A ), foibidding restraint and coercion of employees by labor organizations , contains a proviso that "this paragiaph shall not impair the right of a labor organization to prescribe its own rules with, respect, to-the 'acquisition or retention of membership therein. " The finding made above does not impair that right, since the quoted proviso does not excuse practices which , as in this case, are used by a union as instruments to effect unlawful discrimination in employment . Utah Construction Co., 95 NLRB 196 , 206, footnote 25; Bendix Aviation Corporation, 99 NLRB 1419, 1421. 'a In accordance with the Board's past interpretation , the expression "former or sub- stantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 14 See Crossett Lumber Cornpaiiy, 8 NLRB 440 , for the applicable construction of "net earnings " 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As it has been found that, the Company, in violation of Section 8 (a) (1) of the Act, has interfered with, restrained, and coerced employees in the exercise by them of rights guaranteed by Section 7 of the said statute, and that the Union, in violation of Section 8 (b) (1) (A), has restrained and coerced employees in the exercise of 'such rights, I shall recommend that the Company and the Union be directed to cease and desist in the future from committing their said respective violations of the Act. Upon the basis of the foregoing findings of fact, and of the entire record in this proceeding, I make this following: CONCLUSIONS OF LAW 1. Lumber and Sawmill Workers' Union, Local No. 2288, AFL, is, and has been at all times material to this proceeding, a labor organization within the meaning of Section 2 (5) of the Act. 2. W. B. Jones Lumber Company, Inc., is, and at all times material to this proceeding has been, an employer within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Don F. Tooze, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. ' 5. By attempting to cause and by causing the Company to discriminate in regard to the hire and tenure of employment of Don F. Tooze in violation of Section 8 (a) (3), the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing persons employed by the Company in the exercise of rights guaranteed to them by Section 7 of the Act, the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. 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.] Vanadium Corporation of America, Inc. and United Steelwork- ers of America, CIO. Case No. 30-CA-388. October 17, 1955 DECISION AND ORDER On June 1, 1955, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is denied, as the record, including the exceptions and brief, adequately sets forth the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- i Respondent excepts specifically to the following rulings by the Regional Director before the hearing and the Trial Examiner at the hearing: (1) Denial of its motion to dismiss the complaint on the ground that the representative of the General Counsel was 114 NLRB No. 84.