Millwright Local Union No. 2484

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' the recurrence of similar unlawful conduct by the Respondent in the future. Int, order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the Trial Examiner recommends that the Respondent Local 135 cease and' desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Marsh Foodliners, Inc., Yorktown, Indiana, is engaged in commerce within: the meaning of Section 2 (6) and (7) of the Act, and its operations meet the stand- ards set up by the Board for asserting jurisdiction over it. 2. The Respondent, Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., is a labor organization with- in the meaning of Sections 2 (5) and 8 (b) of the Act, and is engaged in doing busi- ness and in promoting and protecting the interests of its employee members. 3. Respondent Local 135 has engaged in conduct violative of Section 8 (b) (4) (A) and (B) of the Act by having induced and encouraged the employees of Roll- ing Mills, Inc., Strohm Warehouse and Cartage Company, and of other employers, to engage in strikes or concerted refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities of Marsh, or to perform services for their employers in connection therewith, the object of the Respondent's conduct hereinabove described being to force or require Foodliners to recognize or bargain with Local 369 as the collective-bargaining representative of Foodliners' employees although Local 369E has not been certified as the representative of such employees in accordance with the provisions of Section 9 of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. Local 369 has not engaged in any unfair practices within the meaning of the Act as alleged in the complaint. [Recommendations omitted from publication.] Millwright Local Union No. 2484 a nd H. B. Clem, Financial Sec- retary, United Brotherhood of Carpenters and Joiners of America, AFL and Harold Lisenby. Case No. '39-CB 95. Oc- tober 05, 1955 DECISION AND ORDER On June 29,1955, Trial Examiner Sidney L. Feiler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in any unfair labor practices and recom- mending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a sup- porting 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 Interme- diate Report, the,-exceptions and brief, and the entire record in the 114 NLRB No. 106. MILLWRIGHT LOCAL UNION NO. 2484 657 case, and finds merit in some of the General Counsel's exceptions. The Board adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent that they are consistent with the findings below. 1. We agree with the Trial Examiner that the evidence adduced by the General Counsel is not sufficient to establish the existence of a dis- criminatory hiring arrangement between the Respondent Union and the Company. We also note that no evidence was presented to sub- stantiate the complaint allegation that the Respondents threatened the Charging Party with reprisals if he continued to work for the Com- pany without prior referral or clearance by the Respondent Union. We shall therefore dismiss the complaint as to these allegations.. 2. We do not agree with the Trial Examiner's finding that the Respondents did not violate the Act by causing the discharge of Harold Lisenby, the Charging Party. There is no substantial disagreement as to the facts. The Union's bylaws explicitly provide that every member must receive a referral slip from the Union's business agent before going to work, that the stewards must demand and examine the referral slips of all members coming to work on the job, that foremen and stewards are to see that the Union's trade rules are upheld, that stewards must inform fore- men of infractions of the trade rules and bylaws, and that stewards are duty bound to take necessary action if the foremen fail to correct such infractions. Both Steward Turner and Foreman D. B. Lisenby, a member of the Respondent Union, testified that they endeavored to comply fully with all the provisions of the Respondent Union's by- laws and trade rules. Over a period of several weeks before August 4,1954, Foreman D. B. Lisenby had made efforts to induce the Company's superintendent, Botts, to hire his brother Harold and had tried to persuade Business Agent Clem to issue a referral slip to Harold. Since July 22 or 23, Botts had been willing to hire Harold, but D. B. Lisenby drew his at- tention to the fact that a referral from the Union was necessary before Harold could get on the job. This referral was steadfastly refused by Clem. On August 4, 1954, Botts decided to hire Harold, notwith- standing Clem's refusal to issue the referral slip.' When Harold re- ported on the job, Steward Turner asked him if he had a referral slip. Harold replied in the negative. Turner then said that he could not work with Harold. Foreman D. B. Lisenby intervened and persuaded Turner to telephone Clem to see if the latter would issue a referral slip to Harold. Clem again refused to issue the slip. Thereupon Turner told Foreman Lisenby that Harold could not work with him without-a referral slip. Turner then reported what had occurred to three other millwrights on the job and told them that he could not 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work with' Harold Lisenby because he did not have a referral slip. When Superintendent Botts was informed of these occurrences, he ordered Harold Lisenby's discharge. The Trial Examiner found that Union Steward Turner's refusal to work with Harold Lisenby because the latter did not have a referral slip from the Union precipitated his discharge, and that Financial Secretary Clem's refusal to issue such referral slip to Harold Lisenby was a contributory factor to the discharge. The Trial Examiner con- cluded, however, that these facts did not establish that the Respond- ents had caused the Company to discriminate against Harold Lisenby within the meaning of Section 8 (b) (2) of the Act, upon the ground that Turner had merely acted in the exercise of his individual rights in refusing to work with a fellow employee, and that, in the absence of a discriminatory hiring arrangement with the Company, Clem was not obligated to issue a referral slip to the Charging Party. We do not agree with this conclusion. It was Steward Turner's responsibility as representative of the Re- spondent Union to enforce the Union's trade rules, including the rule barring from the job any employee who had not obtained a job referral slip from the business agent of the Union. He had been informed at a union meeting previous to the events in question that under the law of the State of Texas a steward could not "pull his men off a job," but that he could state that he would not work with any employee who did not have a proper referral slip. It is significant that Turner was not told that a rule limiting employment to union members who obtained referral slips was unlawful and that it should no longer be enforced. Instead he seems to have been instructed that the rule should be en- forced by a declaration in one form of words rather than in another. It is also pertinent in determining whether Turner acted in his indi- vidual capacity or as agent of the Union that he immediately com- municated his intention not to work with Harold Lisenby to fellow union members. Coming from the steward, this could only have been interpreted by the union members as an instruction to stop work if Harold Lisenby continued on the job. Superintendent Botts correctly interpreted Steward Turner's statement for he immediately ordered the discharge of Harold. The only reasonable and realistic construc- tion to be placed on Turner's conduct was that, with the approval and -encouragement of Respondent Clem, and in his capacity of steward and agent of the Respondent Union, he was threatening the Company with a strike unless the Respondent Union's trade rules"were adhered to and- Harold Lisenby was removed from his job because he had not obtained a job referral slip from Respondent Clem. We so find. We also find, that by causing the Company to discharge Harold Lisenby in violation MILLWRIGHT LOCAL' UNION - NO. 2484' 659 of Section 8 (a)" (3) of the Act, the Respondents violated 8 (b) (2) and (1) (A) thereof., 3. The activities of the Respondents set forth in section 2, above, occurring in connection with the operations of the Company described in section I of the Intermediate Report, have a close, intimate, and sub-' stantial 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. THE REMEDY Having found that the Respondents engaged in certain unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, we shall order them to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent Union to make Harold Lisenby whole for any loss of pay suffered by him as,the result of the Union's unlaw- ful conduct, by paying to him a sum of money equal to the amount he would normally have earned as wages from the date of the discrimina- tion, August 4,1954, until he would have been, or will be ,2 laid off absent the unfair labor practices. In computing the amount of back pay due to the Charging Party for this period, the customary formula of the Board set forth in F. W. Woolworth Company, 90 NLRB 289, shall be followed. As the Trial Examiner did not find that the Respondent Union had discriminated against the Charging Party, the period from the date of the Intermediate Report to the date of the Order herein shall, in accordance with our usual practice, be excluded in computing the amount of back pay due him.3 We shall further provide that the Union may terminate its liability for further accrual of back pay to the Charging Party by notifying the Company that it has no objection to his reinstatement and by formally requesting his reinstatement in the event that'the Magnolia project is still in progress. The Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such notice.4 Upon the basis of the foregoing findings of fact, 'and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The Lummus Company is engaged in commerce within the mean- ing of Section 2 (6) of the Act. 1 Member Murdock , contrary to his colleagues , does not believe that the evidence is sufficient to warrant the conclusion that Steward Turner acted in other than his individual capacity. He would , therefore , adopt the Trial Examiner's recommendation to dismiss the complaint in its entirety. 2 The record is not clear whether the Magnolia job from which Harold Lisenby was discharged, still continues. s Utah Construction Co., 95 NLRB 196. . Pinkerton's National Detective Agency, Inc ., 90 NLRB 205. 387644-56-vol . 114-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Millwright Local Union No. 2484, United Brotherhood of Car- penters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. At all times material herein the Respondent, H. B. Clem, was an agent of:the Respondent Union within the meaning of Sections 2 (13) and 8 (b) of the Act. 4. By causing the aforementioned Company to discriminate against the Charging Party in violation of Section 8 (a) (3) of the Act, the Respondents have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (b) (2) of the Act. 5. By the aforementioned acts, the Respondents have restrained and coerced employees of the Company in the exercise of the rights guaran- teed in Section 7 of the Act, and have thereby engaged in and are en- gaging 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 commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The Respondents have not violated the Act by maintaining or en- forcing an unlawful hiring understanding, practice, or agreement with The Lummus Company. Nor have the Respondents, in violation of the Act, threatened reprisals to Harold Lisenby if he persisted in continuing his employment at the aforementioned Company without prior referral or clearance by the Respondents. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Millwright Local Union No. 2484, United Brotherhood of Carpenters and Joiners of America, AFL, its officers, agents, successors, and, assigns, and H. B. Clem, financial secretary of said Local, shall : 1. Cease and desist from : (a) Causing or attempting to cause The Lummus Company to discriminate against Harold Lisenby, or any other employee or pro- spective employee, in violation of Section 8 (a) (3) of the Act. . -(b) In any other manner restraining or coercing employees or'pro- spective employees of The Lummus Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized 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 : MILLWRIGHT LOCAL UNION NO. 2484 661 {a) Post at the Respondent Union's main office and union hall at Orange, Texas, copies of the notice attached hereto and marked "Ap- pendix A."-' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent Union's representative and by Respondent Clem, be posted by the Respondents immediately upon the receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by, the Respond- ents to insure that said notices are not altered, defaced, or covered by any other material. (b)' Mail to the Regional Director for the Sixteenth Region signed copies of said notice for posting, the Company willing, at the Magnolia project (if still in progress), where notices to employees are custom- arily posted. Such notices are to be posted and maintained for a period of sixty (60) consecutive days after receipt by the Company. Copies of the notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an official repre- sentative of the Respondent Union, be forthwith returned to the Regional Director for said posting. (c) Notify, in writing, The Lummus Company and Harold Lisenby that they have no objection to the employment of Harold Lisenby by the Company, and that they formally request his reinstatement, if the Magnolia job is still in progress. 3. In addition, the 'Respondent Union shall take the following affirmative action which the Board finds will effectuate the policies of the Act. Make whole Harold Lisenby for any loss of pay he may have suf- fered as a result of the discrimination against him in the manner set forth in the section entitled "The Remedy." 4. The Respondents shall notify . the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent maintained and en- forced a hiring understanding, practice, or agreement with The Lummus Company, not authorized by Section 8 (a) (3) of the Act, and threatened reprisals to Harold Lisenby if he persisted in continu- ing his employment at The Lummus Company without prior referral or clearance by the Respondents. s 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 voids "Pursuant to a Decree . of the United States Court of. Appeals , 'Enfoi cing an Order " 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A To ALL MEMBERS OF MILLWRIGHT LOCAL UNION No. 2484, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , AFL, AND TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES OF THE LUMMUS COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: , WE WILL NOT cause or attempt to cause The Lummus Company to discriminate against Harold Lisenby, or any other employee or prospective employee, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or prospective employees of The Lummus Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL notify, in writing, The Lummus Company and Harold Lisenby that we have no objection to the employment of Harold Lisenby by the Company and that we formally request his rein- statement, if the Magnolia job is still in progress. WE, the undersigned Union, WILL MAKE whole Harold Lisenby for any loss of pay he may have suffered as a result of the discrimi- nation against him. MILLWRIGHT LOCAL UNION No. 2484, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) (Signed)------------------------------------- (H. B. CL1:uT, Fsnancial Secretary) 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 Upon a charge and amended charge filed by Harold Lisenby, an individual, the General Counsel of the National Labor Relations Board 1 by the Regional Director for the Sixteenth Region (Fort Worth, Texas), on May 3, 1955, issued a complaint 1 The term General Counsel as used herein includes the attorney representing the General Counsel at the hearing ; the National Labor Relations Board is referred to as the Board. MILLWRIGHT LOCAL'UNION NO. 2484 663 against- Millwright Local Union No. 2484, United Brotherhood -of Carpenters and Joiners of America, -AFL, herein referred to as the Union, and H. B. Clem, financial secretary of the Union (both are referred to 'collectively as the Respondents), alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) and Section 2 (6) and (7). of the National Labor Relations Act, as amended, 61 Stat. 136, 65 Stat. 601, herein called the Act. Copies of "the charges, complaint, and notice of hearing were served upon the parties to the proceeding. With respect to unfair labor practices , the complaint alleges in substance that from on or about August 4, 1954, the Union through -its representatives and agents, including Clem, and in violation of the Act: (1) Has threatened Harold Lisenby with reprisals if he'continued to work for The Lummus Company; (2) attempted to cause and caused his discharge by the Company because he lacked prior referral or clearance by the Union; and (3) since August 4,-1954, the Union in violation of the Act has been a party to an understanding, practice, or agreement with The Lummus Company requiring that all millwright employees on a project at Beaumont, Texas, have membership in, or clearance, approval, or referral by, the Union as a condition of employment. The Respondents, in their answer, dated May 11, 1955 , admit certain jurisdictional allegations, but deny the commission of any unfair labor practices. Pursuant to notice a hearing was held at Orange , Texas, before the duly designated Trial Examiner? All parties 'were represented at the hearing and were afforded full opportunity to be heard and to examine and cross-examine witnesses. At the close of the General Counsel's case-in-chief, the Respondents moved to dismiss as to certain allegations in the complaint and also on the basis of a general failure of proof. These motions were denied . At the conclusion of the presenta- tion of all the evidence, these motions were renewed. Decision was reserved and they are disposed of by the finding and conclusions which follow. Opportunity was then afforded for the presentation of oral argument, but counsel waived oral argument. Opportunity was also afforded for the filing of briefs and/or proposed findings of fact or conclusions of law, or both. A brief was received from the General Counsel. Upon the entire record, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Lummus Company is a Delaware corporation having its principal office and place of business at New York, New York. Branch offices are located at Chicago, Illinois, and Houston, Texas. The Company is now and has been at all times here relevant engaged in the engineering, construction , fabrication, and erection of plants and installations of multistate petroleum and chemical industries. In the past 12-month period, which period is representative of all times material hereto , the Company purchased steel plates and piping and nonferrous materials used in construction of refineries and chemical plants , which materials were valued in excess of $1,000,000 , of which more than 90 percent was shipped in interstate commerce between the several States of the United States. During the same period, the value of the services of the Company in the construction of refineries and chemical plants outside the State of New York were excess of $1,000,000. The alleged unfair labor practices occurred in connection with certain construc- tion work performed by the Company for the Magnolia Petroleum Company at its plant at Beaumont, Texas. This Company has been held by the Board to be engaged in commerce within the meaning of the Act .3 The Lummus Company 2 Simultaneously with the issuance of the complaint herein, the Regional Director issued an order consolidating this case with 2 other cases involving the same Respondents, but a different company ( Cases Nos 39-CB-96 and 39-CB-101) and setting the 3 cases for hearing on the same date. At the hearing, the General Counsel requested that the instant case be tried, separately and that there be a separate transcript. This application was granted without objection. Case No. 39-CB-101 was later dismissed on his motion. Under these circumstances, the Trial Examiner now severs these cases and is issuing separate reports on the complaint herein and the complaint in Case No. 39-CB-96. 3 98 NLRB 1217. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has also been found to be subject to the jurisdiction of the Board .4 The Trial Examiner, finds that The Lummus • Company at all times here relevant was and is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED • Millwright Local Union No. 2484, United Brotherhood of Carpenters and Joiners of America; affiliated with the American Federation of Labor, is a labor organiza- tion within the meaning of the Act. III. THE'ALLEGED UNFAIR LABOR PRACTICES A. Millwright hiring practices at the Company A. F. Botts was superintendent of the Magnolia project for The Lummus Company during the period relevant here. He did all the hiring of millwrights. Their number varied from 1 to 8. D. B. Lisenby was the millwright foreman. Lisenby first learned of a possible opening as foreman at the construction project about the beginning of March 1954 from H. B. Clem, financial secretary and business agent of the-Union. At Clem's suggestion he went to see Botts, but the latter told him there was no opening at that time. In mid-March, Clem summoned Lisenby to the offices of the Union, told him he wanted him to report to the project the next morning, and gave him a referral slip. Clem also introduced Lisenby to a Mr. Grogan, and told Grogan that Lisenby would be his foreman. Lisenby also asked for and re- ceived a referral slip for a brother, R. D. Lisenby. The next day Lisenby and two other applicants were hired by Botts. Lisenby testified that during the period of his employment, from mid-March until August 27, 1954, all millwrights employed on the project were members of the Union and that one of the millwrights served as union steward and collected union referral slips from new millwrights and checked union work cards of all the millwrights from time to time. He further testified that all new millwrights were taken to the steward before they were put to work. Lisenby himself was a member of the Union and testified that he followed the bylaws and trade rules of the Union while employed by the Company The bylaws and trade rules of the Union contain detailed provisions concerning the obligations of members, stewards, and foremen at job sites. The more pertinent of these provisions are as follows: 12. The Foremen shall be in possession of the current quarterly working card and have the current month paid up at all times. 13. It is the duty of the foreman to direct each member to the steward before allowing said member to start to work, for the purpose of having the member's working card and referral slip checked before the member is eligible to work on his job. 20. It shall be the duty of all Foremen, as well as the Steward, to see that the Millwrights trade rules are upheld, violators being subject to a fine. 30. Any member reporting on any job for work must find the steward on that job and present his working card to him before assuming his duties. Failure to do so will constitute an offense and the member shall be fined not less than $1.00. 38. All members must have current quarterly working card to work on job. The steward shall demand and examine the working cards and referral slips of all members coming to work on his job, and shall return referral slips to Business Agent each week-end. Every member violating the above paragraph shall be fined $ 10.00. 39. If a member fails to have his current quarterly working card and is known by other members on the job to have same he shall be allowed to work that day. He shall be required to show his quarterly working card to the steward before going to work for the following day. Failure to comply with the above member shall not be permitted to go to work. 40. Every member must receive a referral slip from the Business Agent before going to work on any job. Any member violating this.paragraph,shall.be fined $10.00 after due examination by the Executive Committee. 41. Any member soliciting or visiting any job thirty minutes before the regular schedule working hours of the job unless given permission by the Business Agent or Executive Committee shall be fined $10.00 after due examination by the Executive Committee. 4 101 NLRB 1628; Consolidated Western Steel Corporation, et al., 108 NLRB 1041. MILLWRIGHT LOCAL UNION NO. 2484 665 53. It is the duty of the Stewards to inform their Foreman of any and all infractions of these Trade Rules and By-Laws, and give the Foremen the op- portunity to correct these infractions before the Business Representative or the Local Union is notified. Should the Foremen then fail to act promptly and effectively, the Stewards shall be duty bound to proceed to take the necessary action. 56. Any member applying for a Maintenance or Operational job, must get permission from the Local Union before going to work. A letter must be given to the Recording-Secretary, stating the wage, hours to be worked, over-time rate, etc., at the time the member asks for permission. Lisenby maintained that the provisions of the bylaws, including referral by the Union had been followed in every case except that of his brother, Harold Lisenby, who was hired as an apprentice. R. M. Turner, who had been millwright steward on the job for approximately 2 months prior to August 4, 1954, testified that as steward he checked the dues cards of all millwrights to make sure that they were not delinquent and that he would not work with any man who was not in good standing. He also testified that each man who was hired turned in a referral slip signed by Clem to the steward and, during his tenure as steward, Turner always returned them to Clem. While he was steward all millwrights hired had referral slips except Harold Lisenby, whose case is discussed in the next section of this report. B. The termination of the employment of Harold Lisenby A few weeks prior to August 4, 1954, D. B. Lisenby spoke to Superintendent Botts with reference to the employment of his brother, Harold, as an apprentice millwright. Botts told D. B. Lisenby that an apprentice could be employed for every 5 craftsmen and that there were fewer than 5 millwrights then on the staff. However, on August 4, Botts did interview and hire Harold Lisenby. D. B. Lisenby testified that the provision for referral by the Union was not followed in the case of Harold Lisenby who was a union member. Lisenby explained to Botts, prior to the hiring of Harold Lisenby, that he had been trying to have Clem give a referral to the latter but Clem had refused to do so maintaining that the Company had not requested his referral. Harold Lisenby testified he had also made 2 or 3 fruitless attempts. Nevertheless, Botts did proceed with the hiring of Harold Lisenby. Harold Lisenby reported for work on the morning of August 4 and was hired by Botts. He was given a badge and taken to a shop used by the millwrights. While he was waiting for instructions R. M. Turner, a millwright and the union steward on the job, came in and asked him whether he had a referral slip. According to Harold Lisenby, when he told Turner that he did not have a slip, Turner asked him if he knew whether he could go to work without one and if he did not know that he needed one to go to work. Lisenby replied that he did not know that. D. B. Lisenby then entered the room. D. B. Lisenby testified that Turner reported to him that Harold Lisenby did not have a referral slip and could not work without one. D. B. Lisenby replied that the Company had already hired Harold and he did not see why the latter could not keep -vyorking. Turner then said he would telephone Clem. In a few minutes, Turner returned and said, according to D. B. Lisenby, that Harold Lisenby could not work without a referral because Clem had instructed him to take all millwrights off the job if Harold went to work. D. B. Lisenby then asked Turner to send Harold off the job, but Turner refused and reiterated his instructions from Clem. D. B. Lisenby then left and told Botts that Turner had said Harold Lisenby could not work without a referral. Botts said that Harold should be dismissed, but agreed with the suggestion of D. B. Lisenby that action be deferred until Harold made an- other attempt to secure a referral from Clem. Harold made an attempt to secure a referral, but was refused by Clem who again told him he did not have a call from the Company for his services. Botts, although vague on details, stated that he ordered the discharge of Harold Lisenby after either D. B. or the steward reported that the men refused to work with Harold. D. B. Lisenby testified that he himself had telephoned Clem between July 26 and August 4 and asked for the referral of Harold, but Clem had told him he had not had a call for Harold from the Company. He also testified that Clem had told him after a union meeting in July that he would not give Harold a referral. 666 DECISIONS .OF:,NATIONAL• LABOR RELATIONS BOARD ' Turner's version of, what occurred on August 4, 1954, differed substantially from that of D. B. Lisenby. He testified that he had asked Harold Lisenby whether he had a referral slip and when the latter said he- did not have one, told him that he could not work with him.: When D. B. Lisenby entered the shop Turner told him that Harold did not have a referral slip. D. B. replied that he did not think Harold needed one. The rest of the conversation, according to Turner, was as follows: He said he did not know that the boy had to have one. I guess he ought to have known because he made the motion on the floor. - I asked him, "Well, what do you want me to do with him?" He said, "I don't want you to do anything with him." I said, "What do you want me to do about it?" He said, "Do you want to send him in?" I said, "I can't send him home." I didn't bring him out there. We talked about it a little while and so, he asked me to call Mr. -Clem and 'see if he would give him a referral slip. So, I went to call Mr. Clem and asked him if he would give him a referral slip. He-said, "No, tell him he doesn't have a call." - , I said, "That is all I want to know." I told D. B. Lisenby he could not work with me without a referral slip. So, he asked me again, "Well, do you want to send him in?" or "Do you want to send him home?" I said, "No, I can't send him home because I didn't bring him but I don't have to work with him." Turner then retuirned to' work':' A short 'time later, according to his version D. B. told him :{it ;was -taken care of." He denied stating that Harold Lisenby could not work without- a referral slip or that he would pull every man off the job if Harold continued to work. He asserted he told Harold that he had to have a referral slip showing that. he had "cleared" the hall and was a member in good standing for him, Turner, to work with him. He further testified that after his conversation with the Lisenbys he reported what had occurred to the three other millwrights on the job and told them he could not work with Harold Lisenby since he did not have a referral slip. He also stated he , had instructions, from his Union that he could not "pull" a man off a job, but could refuse to work with an employee. The, Trial Examiner found -Turner a straightforward witness who gave a clear and cogent description of what occurred. The Trial Examiner credits his version. Contentions of the Parties; Conclusions The General Counsel contends that the evidence establishes the existence of a discriminatory hiring arrangement between the Company and the Union. He stresses the following undisputed points: 1. All millwrights on the job were members of the Union. 2: All millwrights presented referral slips to the union steward who returned them to the Union. 3. Both the foreman, D. B. Lisenby, and the steward tried to follow the provisions of'the bylaws of the Union on the job. - 4. Harold Lisenby, the only millwright employee on the job without a referral slip, was discharged. . -It must be kept in mind that the Company is not a party respondent to these pro- ceedings. Any issue as to, its maintenance of a discriminatory hiring practice solely as a matter of company policy is not involved in this proceeding nor is there in- volved any issue as to assistance furnished the Union by the Company through the activities of D. B. Lisenby or any other supervisor. D. B. Lisenby was both a foreman and a union member. Under the bylaws of the Union, which Lisenby tried to follow, a foreman was under a duty to try to enforce union policies on the job. The General Counsel points out that under such circum- stances discriminatory hiring practices enforced by a foreman may bind a union.5 However, it is very clear that D. B. Lisenby had no control over hiring. Whatever assistance he rendered the Union occurred after' men had been hired. Superintendent ' Botts had full charge of hiring for the Company. There is little direct evidence linking him with. a discriminatory hiring arrangement. Thus, ac- cording to D. B. Lisenby, when he first went to the company premises, Botts asked e Grove ,shepherd Wilson & Eruge, Inc., 109 NLRB 209, 215. MILLWRIGHT LOCAL- UNION "NO.02484" 'i'%• 1 667 him -whether he was lookingfoi work. - Lisenby was not hired on this occasion (but was hired later. With regard to the. hiring of Harold _Lisenby, D. B. Lisenby testified that he first spoke with Botts' about the hiring of Harold on July 22 or 23. According to D. B. Lisenby the conversation was as follows. ' I asked Mr. Botts; "Will you' do me a' favor?", and he asked me,. "What favor?" I asked him to put Harold-out there as a millwright apprentice , and he said that he would. He asked me to tell him to come to the gate. I explained to Mr. Botts he wasn't a union member and suppose I get him fixed up with the union first and bring him out, and he said, "Well and good.", The day before- Harold was hired, D. B. Lisenby had another conversation .with Botts in which, according to his testimony, 'he explained that he had not been able to obtain a referral from Clem who claimed that there had been no request for Harold's referral. Botts replied, "I told you, to tell him to come to the gate about 9:00 or 9:30." . These' incidents hardly tend to establish Botts' adherence to a dis- criminatory referral system. S I .. , -,I< , Turning now to the Union's role in the hirings, D., B. Lisenbtestified that on the occasions he went,to^ the project; he went' after receiving notice' fiom Clem that there were job openings and that he should report. Clem gave, him a referral slip which he later gave to the steward at the job. Others also received referrals from Clem and were sent to the job. There is testimony that all millwrights on the- job were union members and all had referrals. While • this" situation certainly, is an important factor to be considered, it does not in and of itself establish a discrimina- tory hiring arrangement between the Union and the Company.6 Although the factors pointed out by, the General Counsel are suspicious,, they also are consonant with, ac- tivities of a union not violative of the Act. What direct evidence there . is as to the hiring policies of'the'Company tends to negative the existence of an agreement. The Trial Examiner concludes that it has not been established that the Union has been a.party to an understanding, practice, or agreement` with The Lummus Company. re- quiring that all millwright employees at its Beaumont, Texas, project have mem- bership in, or clearance, approval, or referral by, the Union. It is clear that the refusal of R. M. Turner, the union steward, to work with Harold Lisenby because the latter did not have a referral from the Union precipitated his discharge. However, the Act does not prevent an individual employee, taking the position Turner did. Concerted activity to prevent hiring of employees be- cause of their membership or nonmembership in a union is a different situation? Turner was a union representative on the job:: This did, .not deprive him' of his rights under the Act to take individual action on his own behalf. , A'contributing factor to Harold Lisenby's discharge was the refusal of Clem to issue a' referral to Harold Lisenby. Clem maintained that' he had, not received any request to refer Lisenby to the job.. In the, absence of:proof-of.a-discrimina- tory hiring arrangement, there was no obligation on' the Union under the 'Act to accede to the requests of the Lisenbys that a referral be issued to Harold. The Trial Examiner;, therefore;,, concludes that; it. has, not been established that the, Re- spondents'"caused" the Company to 'discriminate' against' Harold.' Lisenby' within the meaning of Section 8 (b) (2) of the Acts ' CONCLUSIONS OF LAW .1. The Lummus Company is engaged in commerce within the meaning of Sec- tion•2 (6) of the Act. 2. Millwright Local Union No: 2484, United Brotherhood of Carpenters and Joiners of . America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. , .'3. The Respondents have not engaged in unfair labor practices within the mean- ing of Section 8 (b) (1) (A) and (b) (2) of the Act.. [Recommcndation's omitted from publication.] • E Bechtel Corporation, 108 NLRB 1070. 7 Bechtel Corporation, supra. 8 Local No 63, Unated Brotherhood of Carpenters and Joiners, et al, 106 NLRB 231, 232.