Myles Worstell

MYLES WORSTELL 503 Myles Worstell,' Business Agent of Local 2023 ; Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL and Glen A. Williamson . Case No. 9-CB-259. October 18, 1955 DECISION AND ORDER On July 22, 1955, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allega- tions. Thereafter, the Respondents filed exceptions to the Inter- mediate Report. No brief in support of the exceptions was filed. 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 Respondents' exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL, its officers, agents, suc- cessors, and assigns, and Myles Worstell, business agent of said Local, shall : 1. Cease and desist from : (a) Giving effect to, entering into, renewing, maintaining, or en- forcing any agreement, arrangement, understanding, or practice with Baker & Coombs, Inc., under which employment of carpenters by Baker & Coombs, Inc., is conditioned upon the applicant obtaining a clearance or referral slip from Respondent Worstell or his successor, and preferential treatment is accorded to members of the Respondent Union in issuance of such clearance or referral slips, except as au- thorized by Section 8 (a) (3) of the Act. (b) Causing or attempting to cause Baker & Coombs, Inc., its officers, agents, successors, or assigns, to discriminate against employees ^ The spelling of Respondent Worstell's name is hereby amended to Worstell instead of Worstel, to conform to Worstell 's signature as it appears on the General' Counsel's EiLitihts Nos. 6-A-6 NNNN 114 NLRB No. 86. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or-applicants for employment -because they have not, received a clear- ance or referral slip from the business agent of the Respondent Union, *or in any other manner to discriminate against employees or, ap- plicants for employment in violation of Section 8 (a) (3) of. the Act. (c) In any other manner restraining or coercing employees of, or applicants for employment with, Baker & Coombs, Inc., in -the ex- ercise 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 by Section 8 (a) (3) of-the Act. - 2. - Take the following affirmative action which the Board finds will effectuate the policies of the Act: , ,(a) Notify" Baker & ' Coombs, Inc., and Glen' A. Williamson, in. writing, that they have no objection to the employment of Glen A. Williamson by the above Employer. - ' ' - • " - ' (.b) ,; Post' •ih' conspicuous' places in their, business offices, and all places where notices to members are customarily posted, copies of the, notice attached to the Intermediate Report and marked "Appendix A." 2 Copies of said notices, to be furnished by the Regional Director for -the Ninth Region, shall, after being duly signed in the manner indicated, be posted by the Respondent Union and Respondent' Myles Worstell immediately upon receipt thereof and be maintained by them for a period of sixty (60) consecutive days thereafter. Reason- able steps shall be taken by,them to insure that said notices are not altered,' defaced, or covered by any other material.' (c) Mail, to, the Regional Director for the Ninth Region, signed copies' of the notice attached to the Intermediate Report and marked "Appendix A" 3 for posting at the Employer's construction project near Long Reach, West Virginia, in places where it is convenient and customary to post notices to employees, if the Employer, will permit it. Copies of such notice, to be furnished by the Regional Director for the Ninth, Region, shall ' be returned forthwith to' the Regional Director for posting after being duly signed in the man>;ler indicated. 3. In addition, the Respondent Union shall take the following af- firmative action which the Board finds will effectuate the policies of the Act : , - - Make whole Glen A. Williamson for any loss of pay he may have suffered as a result of the discrimination against him in the manner 2 This notice , 'however, shall be, and it hereby is, amended by striking from the, first paragraph therein the words "The Recommendations of a Trial Examiner " and substituting- in-lieu thereof the words 'A Decision and Order " In the event that this Order'as,en- forced•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 " , y ., • , 8 Ibid., footnote 2. MYLES WORSTELL ' 505 set forth in the section -.of the Intermediate Report 'entitled ` "The Remedy." -- -4. 'The Respondents shall notify the -Regional Director for the Ninth Region in writing,, within'ten , (10)', days from thee date of this, Order, what steps the Respondents have taken' to comply herewith. 'IT IS FURTHER. ORDERED that the complaint be, and it hereby 'is; dis`, missed insofar. as it alleges violations of the Act other- than' these found herein. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE'-' ' - - Upon charges filed ' by. -Glen A. Williamson,, an individual, the -General Counsel of the National Labor Relations Board , herein respectively called the:General Coun- sel and the Board, by the Regional Director for the Ninth Region (Cincinnati,:Ohio), issued a complaint, dated May 10, 1955, against Local 2023 of the United Brother- hood of Carpenters and Joiners of America, AFL, and its business agent, Myles Worstell, herein also collectively referred to as the Respondents and, separately, as Respondent Union and Respondent Worstell. The complaint alleges; in substance, that: (1 ) At all `times since ' October 2, 1954, the' Respondents have attempted to cause and have caused Baker and Coombs, Inc., herein also called the Employer, to refuse to hire Glen A. Williamson because he was not a member in , or could not gel clearance from, the Respondent Union; (2)'at'all iimes `since •June 8, 1954, the Re' spondent Union, through Respondent Worstell and other agents, has entered into and enforced closed-shop understandings and practices with the Employer, requiring the Employer to hire only those cleared by Respondent Union and to give preference in hiring to members of 'Respondent Union; and '(3), by such conduct the Respondents have engaged in unfair labor-practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act, 61 Stat. 136. Copies of the charges, complaint, and notice of hearing were duly.served upon the Respondents who thereafter duly filed a joint answer in which they denied the commission of any unfair labor practices. . Pursuant to notice, a,hearing was held on June 14 and 15, 1955, at St. Marys, West Virginia . All parties were represented at the hearing and were afforded full oppor- tunity to be heard , to ,examine , and cross-examine witnesses, to introduce relevant evidence, to present oral ', argument . at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Respond- ents' motions to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, are disposed of in accordance with the findings of fact and conclusions of law made below. No briefs have been filed by any of the parties. . Upon the entire record in the case, and from my observation of the demeanor of the witnesses , I make the followingF FINDINGS OF FACT 1. THE BUSINESS OF. THE EMPLOYER , BAKER & COOMBS, INC. Baker & Coombs, Inc., a West Virginia corporation with its principal office and place of business at Morgantown, West Virginia, is engaged in business operations as a general construction contractor . During the course of its business operations, the Employer has engaged in the construction of numerous projects of a residential, in- dustrial, and institutional nature. Linde Air Products Company, a division of Union Carbide and Carbon Corpora- tion, is a New York corporation engaged principally in the manufacture of chemi- cals, with plants located in various States of the United States. Linde Air Products Company annually produces , sells, and transports goods and products , valued in excess of $500,000, from points in one State directly to destinations located in other States. Since June 1954, the Employer has been engaged, near Long Reach, West Vir- ginia, in the ,construction of a chemical plant for Linde Air Products Company. The value of the construction services rendered by the Employer to Linde Air Products Company on this pioject from June to December 1954 is approximately $1,219,425, and from January to April 30, 1955, approximately $975,288. These figures in- 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elude the value of services which the Employer let out to subcontractors. The value of the services rendered directly by the Employer itself during 1954 is approximately $500,000, of which approximately $200,000 was spent for materials and approxi- mately $300,000 for labor. The Employer anticipates that its work under contract at the time of the hearing will be completed by the middle of August 1955. Upon the completion of the plant and the commencement of full production on or about December 1, 1955, Linde Air Products Company will annually produce and ship products, valued in excess of $100,000, directly to points located outside the State of West Virginia. Upon the foregoing undisputed facts, I find that the Employer is engaged in operations affecting commerce within the meaning of the'Act and that the Board's requirements for the assertion of jurisdiction have been satisfied.' II. ' THE RESPONDENTS Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL, the Respondent Union, was at all material times, and is, a labor organization within the meaning of Section 2 (5) of the Act. Respondent Myles Worstell was, at all material times, and is, business agent of the Respondent Union and its agent within the meaning of Sections 2 (13) and 8 (b) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges and the General Counsel contends (1) that the "Respondent Union, by its officers and agents, particularly Myles Worstell, business agent, has entered into and enforced, and is enforcing, closed-shop understandings and practices with the Employer, which embody terms and conditions of employment that require the Employer to hire only employees who have been cleared by the Respondent Union and require the Employer in so hiring to give preference to employees who,are mem- bers of Respondent Union" and (2) that the "'Respondent-Union, by its officers and agents, particularly Myles Worstell, Business', Agent, attempted to cause, caused, and is now causing the Employer to refuse to hire Glen A.`Williamson, because he was not a member or could not get clearance into Respondent Union." A. The written agreements It is the General Counsel's contention that the Respondent Union was a party to two written agreements, dated June 8 and 10, 1954, with the Employer, that these agree- ments contain unlawful union-security provisions, and that by the execution and en- forcement of these agreements the Respondents violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. The Respondents contend that the June 8 agreement does not contain unlawful union-security provisions and that the Respondent Union was not a party to the June 10 agreement. 1. The agreement of June 8, 1954 This agreement was executed by the Employer and 14 AFL locals, including the Respondent Union. The agreement was signed on behalf of the Respondent Union by its then business agent, Roy H. Robinson. The Employer agrees therein to recog- nize the respective AFL locals as the exclusive bargaining representative of em- ployees on the "Linde Air Products Company Project at Long Reach" and to make all work assignments on this job "in accordance with the provisions of the National Joint Board for the Settlement of Jurisdictional disputes." The signatory local unions, in turn, agree that all jurisdictional disputes which may arise on the job "will be processed according to the National Joint Board Plan for the Settlement of Jurisdic- tional disputes" and that there will be no work stoppage on the job because of a juris- dictional dispute. The crucial provision relied on by the General Counsel reads as follows: Baker & Coombs, Inc., hereby agrees by direct reference to the terms and condi- tions of the existing collective bargaining agreements which were negotiated by and between the A. F. of L Local Unions listed below and the Contractor's Associations listed below. I Jonesboro Gram Drying Cooperative, 110 NLRB 481; Carpenters Local Union No. 1028, United Brotherhood of Carpenters & Joiner' ,o f America AFL. 111 NLRB 1025; Calera Mining Company. 97 NLRB 950 MYLES WORSTELL 507 Opposite the name of each local union is the typed, designation of a contractors' association of a specified city or area. The following designation appears opposite the name of the Respondent Union Assoc. Gen. Cont. i?aikersbtti=g; W. Va. St. Marys The word "St. Marys" and the line through the word "Parkersburg" are in ink. It is the General Counsel's contention that this designation has reference to a contract, 'executed April 1, 1954, by the Respondent Union with three other local contractors, in which the contractors agreed to abide by the bylaws and working rules of the Respondent Union; that the bylaws contain union-security provisions which, if embodied in a contract, would be unlawful; and that these provisions were thereby incorporated by reference into the Jul 8-agreement with the Employer, thus render- ing that agreement unlawful under the Act. The Respondents contend that, as the April 1 agreement was made with three other local contractors, and not with the Associated General Contractors designated in the June 8 agreement, the April 1 contract is not the one to which the June 8 agreement has reference and therefore its terms were not incorporated into the latter agreement. The General Counsel introduced the June 8 agreement through Russell Satterfield, the Employer's service manager. Satterfield testified that the document was, in the Employer's files and was given to him by James E. Coombs, the Employer's president, who told him that it was the original document of the June 8 agreement. He identi- fied Coomb's signature but testified that he was not present when the document was signed and was not familiar with the circumstances under which Coombs signed it. The General Counsel called no other witnesses and adduced no other evidence to explain the circumstances under which the agreement was signed or the reference to the designation- Assoc. Gen. Cont. 4?ftefebti W. Va. St. Marys Roy H. Robinson, called as a witness by the Respondent Union, admitted that he signed the June 8 agreement on behalf of the Respondent Union. He testified that at the time he signed it he had no intention of making the April 1 agreement with the three other local contractors a part of the June 8 agreement with the Employer and that "the thing [June 8 agreement] was drawn up for the purpose of crafts agreeing that there would be no stoppage of work on account of jurisdictional disputes." He further testified that at the time when he signed the document, the designation merely read "Assoc. Gen. Cont., Parkersburg, W. Va.," and that before signing he men- tioned the fact that the reference to Associated General Contractors did not concern his Local. He also testified that he never discussed this agreement with any one con- nected' with the Respondent Union, either before or after signing it, and never even received a copy. The evidence is undisputed that the Respondent Union had no contract with any Contractors' Association in St. Marys and that in fact there is no Contractors' Association in St. Marys or vicinity. Respondent Myles Worstell, who became business agent of the Respondent Union on July 1, 1954, testified that he had never seen the June 8 agreement before it was introduced into evidence and that he did not even know that such a document existed. On this state of the record, I am of the opinion, and find, that the General Counsel has failed to prove by a preponderance of the evidence that the April 1 contract, embodying the Respondent Union's bylaws, was incorporated by reference into the June 8 agreement with the Employer. 2. The agreement of June 10, 1954 On June 10, 1954, the Employer and the United Brotherhood of Carpenters and Joiners of America executed the following "International Agreement": We, the firm of Baker & Coombs, Inc.-Agree to recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and abide by the rules and regulations estab- lished or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenters and Joiners. No change to be made in the hours and wages in any locality, and no conditions imposed other than enforced on all Local firms. '508 DECISIONS OF NATIONAL,• LABOR c-RELATIONS BOARD ' In consideration, of the foregoing, the United. Brotherhood - of Carpenters and Joiners of America agree that no stoppage of work or any strike of its mem- bers, either collectively or individually, shall be entered into pending any dispute being investigated and all peaceable means taken to bring about a settlement. It is the General Counsel's contention that the International Union acted as the agent of its locals, including the Respondent Union, in executing this agreement; that the agreement contains unlawful union-security prod isions; and' that this agree- ment thereby establishes a violation of'the Act on the at of the Respondent Union. The Respondent Union contends' that this agreement was executed' by the Interna- tioPal 'Union,;which is not a party to this case, and takes issue with the conclusion 'of the General _Counsel' -that in 'executing' this agreement the International was acting as the agent of the Respondent Union, one of its locals, so as to make the latter a party thereto. There ,is no evidence,in the record that the Respondent Union ever authorized or 'adopted this agreement. ' Indeed;'the record does not show whether the Respondent Union • was even= aware of the existence of this agreement. On the other hand, the 'record' does show that the Respondent Union exists as a separate entity and has executed contracts in its own name. Accordingly, without' passing on the legality of the "International Agreement," 'I find that the 'General Counsel has failed to prove by a preponderance of ,the ,evidence'that the Respondent Union is a party to this agreement. B. The hiring arrangement; Res'pondent's violations of the Act The remaining issues raised by the complaint and the General Counsel's conten- tions are _(1) whether, leaving the written contracts aside; the Respondents and the Employer had entered into and maintained a discriminatory hiring arrange- ment, understanding, or practice under which the employment of carpenters was conditioned upon an assignment or referral slip from the Respondent Worstell and preferential treatment in the issuance of assignment or referral slips was ac- corded to members of the Respondent Union, and (2) whether Glen A. Williamson, the, Charging Party, failed to receive employment from the Employer because of this discriminatory hiring arrangement, understanding, or -practice. The Respondent Myles Worstell was installed as business agent of the Respondent Union on July 1, 1954, for a term of 1 year. Worstell testified that a few days after he had been installed as business agent, he had a talk with Wilbur A. Mollnow, who "came in new" to the Linde Air, Products job as project manager for the Employer. Mollnow had succeeded Henry Harman as project manager and re- tained this position until about the middle•of February 1955. According to Worstell, Mollnow. told him that "he liked to hire or call the business agent for men, because the business agent ordinarily would know the qualifications of the workmen, where he,lived, and all that sort of thing" and that he [Worstell] tried to please Mollnow and "get as many of our members on the job as possible." During the discussion Worstell also showed Mollnow a copy of the April 1, 1954, contract which the `Respondent Union had with other contractors in the area. As previously-noted, this contract set forth the wages, hours, and working conditions for carpenters and mill- wrights and provided that the contractors agreed to hire all foremen and general foremen from the Respondent Union and to abide by the present bylaws and working rules of the Respondent Union. Worstell denied that he had any agree- ment or understanding with Mollnow whereby the latter was -to hire carpenters only through Worstell or the Respondent Union. Mollnow, however, made no such denial. Worstell explained that carpenters were hired through him by the Employer's project managers in the following manner: If a project manager ordered some men from him, he would first think about the members of his local "who I knew were unemployed and who had contacted me and said they needed work." At one time he maintained a list of his members who were unemployed and the amount of work -they had received, and he would try to work it out according to who he felt were the most deserving men. He would then contact the men by phone or at their homes, tell them he had employment for them, and give them a copy of an assignment slip which introduced the man to the Employer as a member of the Respondent Union who was qualified for employment as a journeyman car- penter. The -men took these slips to the job so that the project manager would know that Worstell had sent them. Project Manager Mollnow testified that he himself did the requisitioning of craftsmen- and that he hired all his carpenters through Worstell, with the excep- MYLES WORSTELL 509 lion of Joe'"Haller whom he hired directly as a carpenter."foremaii.because Haller had' worked for him on a prior project. The evidence is undisputed, that . on one occasion-'when some carpenters and laborers had reported for work to the, Em- ployer's ^ office, Mollnow told the timekeeper not to assign any craftsman to work without an assignment slip from the respective business agent. . The`' General Counsel introduced into evidence copies - of 92 work - assignment slips, issued by Worstell for members of the Respondent Union' and addressed' to the, Employer, for the months of July,' August, 'October, and November, - 1954:2 'Worstell admitted that since he has-been business agent of the Respondent Union, the only 'carpenters who went' to "work for the Employer without any assignment slip from.him were John W. Smith and Robert Fred Harper. Harper was hired by Mollnow's successor, Joe Haller, after the charges in this proceeding -had been served upon the Respondent. Smith was hired on October 19, 1954, by Gen- eral Carpenter' Foreman Karl Tuescher. Smith testified that he went to see Tuescher for a'job because he had previously worked for him on another project;"that, 'a few days-after he was hired he asked Worstell if he needed an assignment slip; and that Worstell told him that he did not. When asked why he checked with Worstell about the need for an assignment slip, he testified that "I just didn't want to"get him on,myself, and have hard feelings around the union." At the time that he was hired, Smith was a member in good standing of the Respondent Union. Worstell testified that the Respondent Union was a small local and that he and the steward knew all- members personally. All carpenter -foremen and general carpenter fore- men on the project were members of the Respondent Union. William Franklin Smith was elected president of the Respondent Union in July 1954 for a term of 1 year. From the middle of August to November 8, 1954, he was also the union steward on the Linde Air project of the Employer. As job steward, one of the tasks performed by him was to check the working cards and assignment slips of all new carpenter employees reporting to the job. He then took the employees to the employment office and referred them to Mr. Boner, the time- keeper, to fill out their social-security forms and other employment papers. When 'the' pew employees were assigned to their particular job, 'Smith escorted the men to' the general carpenter foreman who would assign them to the appropriate car- penter foreman. While he was job steward, all carpenters appearing on the job had working cards and assignment slips from Worstell, which Smith checked before bringing,them to the payroll office for processing. The only exception was the case of John Smith, mentioned above,, who was hired in October by General Carpenter Foreman Karl Tuescher. At the time that John Smith was hired, Steward Smith asked Tuescher if John Smith had been sent up by Worstell. Tuescher replied in the negative, stating that he had hired him direct. Steward Smith in- ferred from Tuescher's statement that John Smith did not have an assignment'slip and therefore did not question Smith about it when he escorted him to the car- penter's shanty. When asked why he queried Tuescher as to whether John Smith had ;been sent up by Worstell, Steward Smith replied, "Well, that was the general pjactice, in the area " Steward Smith admitted that if a man were hired without an assignment slip, he [Smith] should report it to the business agent but testified that "I don't recall of having told Myles Worstell that John Smith went up there without ,any assignment slip." 3 2 Twenty-three for July ; 38 for August ; 25 for October , and 6 for November 5 The findings concerning Steward Smith's activities in checking assignment slips are based on Smith's signed , sworn statement made to a Board field investigating examiner on November 18, 1954 At the hearing in this proceeding Smith attempted to repudiate these statements, testifying that it was not the steward's duty to check assignment slips, ,that he never checked assignment slips when he was steward, that he did not remember making such statements to the field examiner, and that he "could have sworn to it that way',' but did not mean it The affidavit made before the field investigating examiner consists of 5 pages written in longhand. The reference to the matter of checking assign- Jent slips appears three times. Smith initialled each page and the entire statement was read to. Smith before lie signed it under oath. On May 26, 1955, the General Counsel showed Smith a copy of this affidavit, consisting of, 3 typewritten pages. Smith admitted that the General Counsel told him it was a copy of the sworn statement which he signed before„tire field examiner; he also admitted that he read this typewritten statement , signed eacl ,,page, and at the end wrote in his own handwriting that "I have read this affidavit again on May 26, 1955 and it is correct to the best of my memory. Worstell also denied that it was the steward's'duty to check assignment slips. Smith has been' president of the Respondent Union at all times material herein The affidavit was received in evidence 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glen A. Williamson, the Charging Party herein, was a journeyman carpenter and a member in good standing of Local 807 at Paden City, West Virginia, a sister local of the Respondent Union. In July 1954 he was informed by Floyd Hacker, an en- gineer of the Linde Air Products Company, that he had obtained a job for him with the Employer, Baker and Coombs, inc., on the Linde Air Products project and that he was to get a work permit from Myles Worstell. This project was within the sole jurisdiction of the Respondent Union.4 A few days later Williamson went to Wor- stell's home, told Worstell that he had a job with Baker &.Coombs, Inc., on the Linde Air Products project, and asked Worstell for a work permit. Worstell refused to give him a permit, stating that "I have a hundred men that I will have to put to work, members of the Local, before I can put you to work," and that, if Williamson would transfer into the St. Mary's Local, Worstell would place him on his list .5 The record shows that during the month of July Respondent Worstell issued 23 work assignment slips to members of the Respondent Union for jobs with the Employer on the Linde Air project. Williamson did not obtain employment with the Employer. On July 28, 1954, Elwood Templeton, a journeyman carpenter who at that time was a member of Respondent Union, received a work assignment slip from Worstell for a job with the Employer on the Linde Air Products project. At that time the union steward on the job was Philip Smith. About six carpenters were reporting for work that morning and all of them, including Templeton, gave their work assign- ment slips to the steward before being taken into the office for processing. Accord- ing to Templeton's credible and undisputed testimony, the steward turned the assign- ment slips over to the superintendent and told him "whichever carpenters can come in and sign up and go to work." After the men had signed the necessary employment papers, the steward escorted them out and introduced them to their foreman. After working about 5 weeks, Templeton was laid off. On November 18 Templeton-returned to the project to look for work. At that time Templeton was a member of the Paden City Local 807, having previously trans- ferred his membership from the Respondent Union. General Foreman Tuescher told him that he could use him and that "you can go to work tomorrow . . . the best thing you can do is to go down to Myles [Worstell] and get you a permit to go to work." Templeton went to Worstell's home, told Worstell that he had a job with the Employer on the Linde Air project, and stated that he would like to have a permit to go to work there. According to Templeton's testimony, Worstell told him that Tuescher had been "trying to pull that there on that job," that there would not be any permits until all the men in his own local were working, and that he "absolute- ly" would not give him a permit to go to work. The record shows that during the month of November Worstell issued six work assignment slips to members of his local for jobs with the Employer on the Linde Air project Templeton was not reemployed by the Employer. Worstell testified that he did not recall telling Templeton anything about Tuescher "pulling that again" and that he doubted that he said it because it did not sound like him. He testified that he told Templeton that he had been instructed by Project Manager Mollnow to take orders for men only from him and that he would not give Templeton a permit until he received a call from Mollnow requesting Templeton. Templeton denied that Worstell made the above statement to him. Worstell admitted that in determining whether to give a man an assignment slip he considered whether the man was a member of the Respondent Union and how long he had been out of work. He also admitted that he would feel more free to give an assignment slip to a member of the Respondent Union than to a member of a sister local who had not transferred his membership. He further admitted that if a member of a sister local applied to him for an assignment slip at a time when members of the Respondent Union were out of work and there were only one job as an admission by an officer of the Respondent Union Under all the circumstances, I accept Smith's admissions as positive evidence respecting his activities as steward and regard them of sufficient probative value to warrant the findings hereinabove made. Grove Shepherd Wilson & Iiriige, Inc, 109 NLRB 209, 212 ' Section 46 C of the constitution of the United Brotherhood of Carpenters & Joiners of America requites any member who desires to work in the jurisdiction of another local union, without transferring his membership, to secure a working permit in writing from the local union in the jurisdiction where work is secured 5 The findings concerning Williamson's conversation with Worstell are based upon the composite testimony of Williamson and Worstell which was mutually consistent Worstell testified that at that time he kept a list of his members who were loafing, of whom he had quite a number, and that he would send them to work in that order ' MYLES WORSTELL 511 available, he "probably wouldn't send the man who belonged to a,sister local." He admitted that what he tried to do was to get as many members as possible of the Respondent Union on the Linde Air project of the Employer. Article X, section I, of the Respondent Union's bylaws then in existence provides, in pertinent part, that "no carpenter shall be given a working permit in the jurisdiction of Local Union No. 2023 [Respondent Union] until all local carpenters are placed on jobs." Worstell testified that although this provision was in the bylaws, it was not enforced while he was business agent. In view of Worstell's above-stated admissions and his refusal to give Williamson a work permit because unemployed members of his own local were available, as previously found, I do not credit Worstell's testimony either with respect to the non- enforcement of the above stated bylaw or with respect to his conversation with Templeton. Under all the circumstances, I find that, in substance, Worstell made the statements attributed to him by Templeton. On October 2, 1954, Glen A. Williamson went to the Employer's Linde Air project to look for a job. He introduced himself to Project Manager Mollnow, told him he was looking for a job as carpenter, and handed him a letter of intro- duction from Floyd Hacker, the engineer of the Linde Air Products Company who was an acquaintance of Mollnow's. The letter introduced Williamson as the car- penter concerning whom Hacker had spoken to Mollnow the preceding day and expressed appreciation for anything that Mollnow could do to help Williamson get employment. Mollnow asked Williamson if he was a member of the local in St. Marys. When Williamson stated that he was a member of Local 807 at Paden City, Mollnow replied, "Well, 1 would advise you to go down and clear your book in St. Mary's Local After you have cleared in, inform Mr. Worstell that you are available for work." 6 Mollnow admittedly made the following notation on Hacker's letter: "Sent him to Worstell to clear thru " Williamson then went to the Paden City local and got a clearance card filled out. A few days later he contacted Worstell and told him that he had come to clear his book into the St. Marys Local. Worstell stated that Worstell could not clear it in, that Williamson would have to bring his book to a meeting of the Local where the book would be inspected and, if found to be in good order, would be cleared in. The matter of clearing Williamson's book was brought up at a meeting of the Respondent Union on October 12, attended by Williamson The Local's president stated that Williamson "has a book here for clearance in our local," and read Williamson's clearance card from the Paden City local. The clearance card and dues book were in proper order. At that point the Respondent Worstell announced that he was trying to get a special dispensation from the International to stop further clearance cards from sister locals because they had too many unemployed members of their own local. He suggested that Williamson's clearance should be held up and-that Worstell should be given until October 15 to obtain a decision from the general office in Indianapolis, Indiana v This suggestion was put in the form of a -motion, was seconded, and passed by the membership. At the close of the meeting, when Worstell returned the book to Williamson,,the latter expressed his amazement at Worstell's conduct in blocking his clearance, because Williamson knew the Employer would be hiring some men within a few days. Worstell replied that he was merely trying to protect the members of his Local from men transferring from other locals and getting jobs which were within the jurisdiction of his Local. Worstell promised to notify Williamson by October 15 as to whether or not the special dispensation had been granted. On October 15 Worstell was informed that the special dispensation was denied. He then attempted to contact Williamson but was unable to find him. He therefore left word with Williamson's wife to have Williamson get in touch with him but did not tell her about the denial of the special dispensation. Worstell testified that the following day he informed the secretary of the Local that "the dispensation had been denied, and if Mr. Williamson should come down to him, that he would know that it had been denied, and his book would be accepted." Although Worstell was served with a copy of the charges which alleged that Worstell and, the Local had caused Williamson to be discriminated against in viola- tion of the Act and although these charges were read at a union meeting, neither 6 The findings concerning the conversation between Williamson and Mollnow are based on the undisputed and ci edible testimony of Williamson 'Section 46 0 of the International's constitution states that if a clearance card and dues book are found coriect, the member shall be admitted to the local union as a member thereof 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Worstell'nor --any other ,agent or officer of the Respondent Union made - any, further efforts to communicate with Williamson , or had any further conversation with him. Williamson never went back to the Linde Air project or to the Local to present his book because, as he testified, he "didn't figure there was any use " Williamson's book was never cleared into the Respondent Umon. The record shows that for the period from October 14 to 28, inclusive, Worstell issued 25 work assignment slips to 'members of the Respondent Union for jobs with the Employer on the Linde Air project . Williamson never received employment on this project. C. Conclusions 1. The discriminatory hiring practices The foregoing evidence leads me to conclude that the Respondent Business Agent Worstell, acting on behalf of the Respondent Union, and Project Manager Mollnow, acting on behalf of the Employer , entered into, and participated in, an exclusive hiring agreement, arrangement, or understanding for the employment of carpenters on the Linde Air Products job, which had the effect of, and resulted in, according preferential treatment to members of the Respondent Union . Thus, when Mollnow first came to the project, he had a conference with Worstell about the mariner in which carpenters would be hired for the project. As a result of this conference, it was understood that Mollnow would hire all carpenters through Worstell. This understanding conformed to the well-known area practice then in existence. There- after, Mollnow admittedly hired all carpenters through Worstell, with the exception of one foreman who had previously worked for Mollnow on another project. The preponderance of the evidence demonstrates that a referral slip from' Worstell, either in the form of an assignment slip or work permit , was required by Mollnow of carpenters as a condition of employment. On the other side, Worstell admitted that during Mollnow's tenure as project manager all carpenters who went to'work for the Employer, with one exception, had a work assignment slip from Worstell. The exception occurred when General Foreman Tuescher, and not Mollnow, hired John Smith who at that time was a member in good standing of the Respondent Union. And even in that case, Smith, being aware of the area practice, felt it necessary to check with Worstell about an assignment slip a few days after 'being hired. Shortly thereafter, Mollnow instructed his timekeeper not to give assign- ments to any men who reported to work without an assignment slip' from the business agent. Steward Smith checked all new employees who reported 'to work as carpenters to see if they had an assignment slip from Worstell . He, admitted that while he was steward all carpenters , except the above-mentioned John Smith, had an assignment slip from Worstell. And in the case of John Smith, the steward inquired to find out if Worstell had sent him. In referring carpenters to the Employer for jobs on the Linde Air project pursuant to requests from the Employer, Worstell gave preference to members of the Re- spondent Umon. This is borne out by Worstell's admissions and by the fact that all assignment slips issued by him were to members of the Respondent Union. In addition, the record contains specific instances of such preferential treatment. Thus, on one occasion Worstell refused to give Templeton, a member of a sister local, a work permit because unemployed members of the Respondent Union were avail- able. On another occasion and for the same reason, Worstell refused to give ,Wil- liamson, a member of a sister local, a work permit and conditioned Williamson's placement on the Union's out-of-work list, then being maintained, upon his be- coming a member of the Respondent Union. Also for the same reason, Worstell was instrumental in having the Respondent Union delay Williamson's transfer into the Respondent Union with the result that Williamson's book was never cleared into the Respondent Union. It is also clear that Project Manager Mollnow was aware of Worstell's, prac- tice of according preferential treatment to members of the Respondent Union in issuing referral slips for jobs on the Employer's project. Thus, when Williamson applied to Mollnow for a job as carpenter, Mollnow inquired if Williamson was a member of the Respondent Union. When Williamson replied that he was a mem- ber of a sister local, Mollnow advised Williamson that he should first transfer'his membership to the Respondent Union and then advise Worstell that he was avail- able for employment. As this advice was given after Engineer Hacker, an' acquaint- ance of Mollnow, had,sought Mollnow's aid in getting work for Williamson,. it undoubtedly reflected Mollnow's awareness of the procedure followed by Worstell in referring carpenters for jobs with the Employer . Moreover, in view of the large number of assignment slips issued by Worstell for jobs on the Employer's project . "MYLES' WORSTELL 5113 over a -relatively- short, period of time, Mollnow could not, have • been wholly un- aware,,-of the fact that not one was issued to a, nonmember of,the, Respondent Union. Carpenter applicants who applied at the gate, while Mollnow was project-manager, were made aware of the Employer's' practice of conditioning employment upon ob- taining a clearance or referral from Worstell.. Thus, General Foreman Tuescher told applicant Templeton that he was willing and ready to hire him but that Tam.' pleton would first have to obtain a work permit from Worstell. Project Manager Mollnow sent Williamson to clear through Worstell, advising him that the best thing he could do was to become a member of the Respondent Union and inform Worstell that he was available for work. And, as previously noted, Mollnow in- structed his timekeeper not to assign any carpenter who reported for work with- out an assignment slip from his business agent. It seems highly improbable to me that, absent some arrangement with Respond- ent Worstell to that effect, the Employer's agents would have unilaterally chosen to send qualified applicants for carpenter jobs to Worstell for- clearance. I have little doubt that each party not only knew of and acquiesced in what the other was doing but that what they did was done by prearrangement. The fact that vir- tually all carpenters on the job were members of the Respondent Union serves to confirm the validity of the finding I make that Business Agent Worstell and Project Manager Mollnow were parties to an understanding or' arrangement under which employment of carpenters on the Employer's project was conditioned upon the applicant obtaining a clearance or referral slip,' in the form of a work assignment slip or permit,_from Worstell and preferential treatment was accorded by Worstell to members of the Respondent Union in the issuance of such clearance or referral slips. Upon the preponderance of the evidence in the record considered-as a whole, 1 am convinced and find that the Respondent-Worstell and the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by entering into an2agree-- ment, arrangement, or understanding with the Employer for the -hiring of, car- penters in an unlawfully- discriminatory manner and by pai ticipatmg along with the Employer in the operation of the unlawful hiring practice thereunder.8 2. The discrimination against Williamson, t - As previously noted, when Williamson applied to Mollnow fo'r a joli.as a carpenter, on October 2, 1954, Mollnow made it apparent to.Williamsoi thai'in order'to- obtain employment he would have to clear through Worstell by first,'transferring his, membership into the Respondent Union, and then informing- Worstell,that`lie, was available for employment. The Employer was equally liable' with the Respond-, ents for the operation of the unlawfully discriminatory hiring practice. Although no carpenter jobs were available before October 14'and although Williamson did not make further application when carpenter jobs did become available during the period from October 14-28 and thereafter, it does not alter the fact that Mollnow's communication of the discriminatory hiring practice to Williamson constituted, under the circumstances, conduct falling within the proscription of Section 8 (a) (3) of the Act. For, the "Board has consistently held that where an employer engages in a discriminatory hiring practice and 'where such practice is commu- nicated to applicants for employment, albeit when no jobs for them are available, an inference and finding is warranted that further application would be futile be- cause from the existence of the discriminatory practice it is clear that the same dis- criminatory conditions would be attached whenever the jobs became available." 9 ,The failure of Williamson to obtain employment with the Employer was the proximate result, and a natural and foreseeable -consequence, of the discriminatory hiring arrangement found above. Those responsible for an unlawful hiring arrange-, ment are also responsible for its reasonably to be anticipated results. Just as the hiring arrangement must be held, on the part of Respondent Union and Respond- ent Worstell, an attemjPt to cause the Employer to discriminate against employees, 8 See,,e. g, Alaska Chapter of the Associated General Contractors of America, Jnc, 113 NLRB 41', Mohaurk,Valley and Vicinity District Council,- et at , 109 NLRB 522, Lichleay Corp. v. N. L.'k B , 206•F. 2d 799, 803, 805 (C A 3) , Geoige D Auchter Co , 102 NLRB $78, 885,,enfd. 209 F. 2d 273 (C A 5) , International Biotheihood of Boilermakers, etc, 94'NLRB 1590 , Construction Specialties Company, 102 NLRB 1542 , Consolidated Western Steel Corp, 108 NLRB 1041 - Consolidated Western Steel Corp'oi'ation,' 108 NLRB 1041, 1042, and cases cited therein. - ' 514 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD so, too, the Employer's discrimination against Williamson resulting from an ap- plication of that arrangement must be held to have been caused by the Respondents. And this is so even if Williamson had made no attempt to transfer his member- ship into the Respondent Union or to obtain a clearance or referral from Worstell.1e At the time when Williamson sought to have his book cleared into the Respond- ent Union, the discrimination against him and the Respondents' liability therefor was then already complete by reason of the earlier application to Williamson at the job site of the discriminatory hiring arrangement. Moreover I find, on the basis of the facts set out in section B, that the Respondents were responsible for the fact that Williamson's book was not cleared into the Respondent Union result- ing in Williamson's failure to receive a work assignment slip from Worstell when carpenter jobs subsequently became available on the Employer's project and thereby causing the Employer to fail to hire him." I find that the Respondent Union and the Respondent Worstell violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by causing the Employer to discriminate against Williamson within the meaning of Section 8 (a) (3) of the Act.12 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Employer, Baker & Coombs, Inc., described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I will recommend that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents have caused Baker & Coombs, Inc., to discrim- inate with respect to the employment of Glen A. Williamson, I will recommend that the Respondents notify Baker & Coombs, Inc., and Glen A. Williamson, in writing, that they have no objection to the employment of Glen A. Williamson by Baker & Coombs, Inc. I will also recommend that the Respondent Union make Wil- liamson whole for any loss of pay he may have suffered by reason of the discrimina- tion against him, by payment to him of a- sum of money equal to the amount he nor- mally would have earned as wages during the period of the discrimination against him, less his net earnings 13 during that period. The computations shall be, made on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289, 291-299. The Respondent Union's liability for back pay shall terminate 5 days after giving the above written notice to Baker & Coombs, Inc., and to Williamson or the date of the completion of the construction project involved in this case, whichever event shall first occur.14 The individual Respondent, Myles Worstell, who was the business agent of the Respondent Union, merely acted as agent for the Respondent Union. The Board has held that under these circumstances an order requiring such individual personally to reimburse the discriminatee for losses suffered is not necessary to effectuate the poli- cies of the Act.15 Accordingly, the reimbursement order will be limited to the Re- spondent Union. CONCLUSIONS OF LAW 1. Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Myles Worstell is the business agent of the Respondent Union and its agent within the meaning of Sections 2 (13) and 8 (b) of the Act. 10 Thomas Rigging Company, 102 NLRB 65, 68, footnote 6 11 Charles E Daboll, Jr, 105 NLRB 311, enfd 216 F. 2d 14^ (C A 9), cert denied 35 1,111134 2334. 12 There is no merit to the Respondents' contention that the word "employee," as used in Section 8 (b) (2) of the Act, does not include a job applicant. N. L. R. -B. V. George D. Auchter Co , 209 F. 2d 273, 277 (C. A 5), and cases cited therein. 13 Crossett Lumber Company, 8 NLRB 440, 498. 14 United Brotherhood of Carpenters and Joiners of America, Local # 517, AFL (Gil Wyner Construction Company ), 112 NLRB 714. 15 Local 42 0, United Association of Journeyman and Apprentices of the Plumbing and Pipefttting Industry of the United States and Canada , AP'L, et al., 111 NLRB 1126 MYLES WORSTELL 515 ' 3. By entering into and participating in an agreement, arrangement, or under- standing with Baker & Coombs, Inc., under which employment of carpenters by Baker & Coombs, Inc., was conditioned upon the applicant obtaining a clearance or referral slip from,Respondent Worstell and preferential treatment was accorded by Worstell to members of the Respondent Union in the issuance of such clearance or re- ferral slips, the Respondents have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (b) (2) of the Act. 4. By causing the Employer, Baker & Coombs, Inc., to discriminate with regard to the employment of Glen A. Williamson within the meaning of Section 8 (a) (3) of the Act, the Respondents have engaged in and are engaging in unfair labor prac- tices in violation of Section 8 (b) (2) of the Act. 5: By the aforesaid conduct the Respondents have also restrained and coerced employees and applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, and thereby have engaged in and are 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.] APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 2023 OF THE UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF BAKER & COOMBS, INC. Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor, Relations Act, as amended, we hereby notify you that: WE WILL NOT give effect to, enter into, renew, maintain, or enforce any agree- ment, arrangement, understanding, or practice with Baker & Coombs, Inc., under which employment of carpenters by Baker & Coombs, Inc., is conditioned upon the applicant obtaining a clearance or referral slip from Myles Worstell or his successor, and preferential treatment is accorded to members of our organiza- tion in the issuance of such clearance or referral slips. WE WILL NOT cause or attempt to cause Baker & Coombs, Inc., its officers, agents, successors, or assigns, to discriminate against employees or applicants for employment because they have not received a clearance or referral slip from the business agent of our organization, or in any other manner to discriminate against them in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce, employees of, or appli- cants for employment with, the above-named Employer, its successors, or assigns, in the exercise of their 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 by Section 8 (a) (3) of the Act. Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL, will make whole Glen A. Williamson for any loss of pay suffered because of the discrimination against him. LOCAL 2023 OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Dated---------------- Labor Organization. By---------------------------------------------- (Representative ) ( Title) MYLES WORSTELL, BUSINESS AGENT, LOCAL 2023 OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Individual. Dated---------------- By---------------------------------------------- (MYLES WORSTELL) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 387644-56-vol. 114-3 4