Joint Council of Teamsters No. 37 and Local No. 501

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By causing an employer to discriminate against James Keener and Gideon Parker in violation of Section 8(a)(3) of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. By the foregoing conduct, Respondent has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. 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 EMPLOYEES OF NED PUTNAM AND WAND CORPORATION AND TO ALL MEMBERS OF LOCAL 911, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , AFL-CIO Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT cause or attempt to cause Wand Corporation or any other employer whose operations affect commerce to discriminate against any em- ployee in violation of Section 8(a)(3) of the Act. WE WILL NOT restrain or coerce employees in the right to refrain from engaging in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement executed in conformity with Section 8 (a)(3) of the Act. WE WILL make whole James Keener and Gideon Parker for any loss of pay suffered as a result of the discrimination against them. LOCAL 911, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- BY------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Joint Council of Teamsters No. 37 and Local No. 501, each affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen, and Helpers of America and Warren Z. Payne and Locals Nos. 162, 58, 900, 569, 324, 321, 962, 911, 883, 57, 689, each affiliated with Joint Council No . 37 and Inter- national Brotherhood of Teamsters , Chauffeurs, Warehouse- men, and Helpers of America, and Portland Home Builders Association, Inc., Parties to the Contract. Case No. 36-CB-141. December 18, 1958 DECISION AND ORDER On October 7, 1957, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding finding 122 NLRB No. 72. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 515 that the Respondents 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 Intermediate Report attached hereto. The Trial Ex- aminer also found that the Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the General Counsel and the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recom- mendations2 of the Trial Examiner with the following addition. The collective-bargaining contract between the Respondents and the Portland Chapter of Associated General Contractors of Amer- ica, Inc. (Heavy and Highway Chapter) contains a hiring-hall clause. In the recent Mountain Pacific case,3 the Board declared that such a provision is unlawful unless it explicitly provides that: (1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements. (2) The employer retains the right to reject any job applicant referred by the union. (3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, .. . The hiring clause in question does not contain the foregoing safe- guards, which the Board deems necessary to rebut the inference that the hiring hall encourages membership in the Union. Ac- cordingly, we find that by entering into and maintaining in effect the hiring provisions of their collective-bargaining contract, and by their hiring practice pursuant thereto, the Respondent Unions vio- lated Section 8(b) (2) and (1) (A) of the Act. i Respondents ' request for oral argument is denied because the record, exceptions, and the briefs adequately represent the issues and the positions of the parties. 2 The complaint alleged that the Respondents violated Section 8 ( b) (2) and (1) (A) of the Act with respect to the Charging Party, Warren Z. Payne. The Trial Examiner found no violation and recommended dismissal of the complaint with respect to Payne. As no exceptions were taken to this finding and recommendation we adopt them pro forma. 3 Mountain Pacific Chapter of The Associated General Contractors, Inc., et al., 119 NLRB 883, 897. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondents have violated the Act, we shall order that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. By the illegal union-security and hiring-hall provisions in their contract with the Portland Chapter of Associated General Con- tractors of America, Inc. (Heavy and Highway Chapter) and by their unlawful hiring practices pursuant thereto the Respondents have in effect maintained a closed shop. Thereby they have in- evitably coerced employees and applicants for employment to pay union initiation fees and dues. We believe it would not effectuate the policies of the Act to permit the retention of these union initiation fees, dues, and all other moneys which have been unlawfully ex- acted from employees of J. A. Jones Construction Company and Charles H. Tompkins Company, a joint venture, doing business as Jones-Tompkins (Swift Creek Dam project), the Company herein involved. As part of the remedy, therefore, we shall order the Respondents jointly and severally to refund to the employees of Jones-Tompkins the initiation fees, dues, and all other moneys unlawfully exacted from them as the price for their employment, the period of liability for reimbursement to begin 6 months prior to the filing and service of the charges herein and extending to all such moneys thereafter collected.4 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Joint Council of Teamsters No. 37, and Local No. 501, each affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, their officers, representatives, and agents, shall: a. Cease and desist from : (1) Performing, maintaining, or otherwise giving effect to pro- visions of any agreement with Portland Chapter of Associated General Contractors of America, Inc. (Heavy and Highway Chap- ter), or with any other employer within the meaning of the Act, which unlawfully condition the hire of applicants for employment, or the retention of employees in employment with any employer, upon clearance or approval by the Respondent Unions, except as authorized by the proviso to Section 8(a) (3) of the Act. 4 See United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. T. Olds, Plumbing & Heating Corporation), 115 NLRB 594; Los Angeles-Seattle Motor Express Incorporated, 121 NLRB 1629. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 517 (2) Performing, maintaining, or otherwise giving effect to pro- visions of any agreement with Portland Chapter of the Associated General Contractors of America, Inc. (Heavy and Highway Chap- ter), or any other employer within the meaning of the Act, which require employees to wear the work buttons of their local unions, permit employers to requisition only union workmen through the State and Federal Employment Service, permit the Respondent Unions to discipline its members by removal from the job for violation of the Respondents' constitution, bylaws, and working rules, and require all except one employee in each departmental storeroom or warehouse to belong to the Respondent Unions. (3) Engaging in the practice, while administering the terms of any agreement or arrangement for an exclusive hiring hall, of giving preferential dispatches to members of Local No. 501 over nonunion applicants or applicants who are members of other labor organ- izations. (4) Causing or attempting to cause Portland Chapter of Asso- ciated General Contractors of America, Inc. (Heavy and Highway Chapter), or any other employer within the meaning of the Act, to discriminate against any employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (5) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, except as permitted by Section 8(a.) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally reimburse all employees of J. A. Jones Construction Company and Charles E. Tompkins Company, a joint venture doing business as Jones-Tompkins (Swift Creek Dam project) for moneys illegally exacted from them in the manner and to the extent set forth in the section herein entitled "The Remedy." (2) Post at their business offices and meeting halls, in conspicu- ous places, including all places where notices to members or ap- plicants for employment are customarily posted, copies of the notice attached hereto marked "Appendix A."5 Copies of said notice to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by representatives of the Respondent Unions, be posted by them immediately upon receipt thereof and main- tained by them for sixty (60) consecutive days thereafter. Rea- sonable steps shall be taken by them to insure that said notices are not altered, defaced, or covered by any other material. 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Mail signed copies of Appendix A to the Regional Director for the Nineteenth Region for posting at the offices of Portland Chapter of Associated General Contractors of America, Inc. (Heavy and Highway Chapter), and its members companies, the companies; willing, for sixty (60) consecutive days in places where notices to, employees are customarily posted. Copies of the notice to be furnished by the Regional Director for the Nineteenth Region,. shall be returned forthwith to the Regional Director after they have been signed by official representatives of the Respondent Unions for such posting. (4) Notify the Regional Director for the Nineteenth 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, dismissed, insofar as it alleged that the Respondent Unions caused Jones-Tompkins to discriminate against Warren Z. Payne in viola- tion of Section 8(b) (2) and (1) (A) of the Act. APPENDIX A NOTICE TO ALL MEMBERS OF JOINT COUNCIL OF TEAMSTERS No. 37 AND LOCAL No. 501, EACH AFFILIATED WITII INTERNATIONAL BROTHERHOOD OF TEAMSTER, CHAUFFEURS , WAREHOUSEMEN AND, HELPERS OF AMERICA , AND TO ALL EMPLOYEES AND APPLICANT& FOR EMPLOYMENT Pursuant to a Decision and Order of the National Labor Relations. Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members and all employees and applicants for employment that: WE WILL NOT perform, maintain, or otherwise give effect to provisions of any agreement with Portland Chapter of Asso- ciated General Contractors of America, Inc. (Heavy and High- way Chapter), or with any other employer within the meaning of the Act, which unlawfully condition the hire of applicants for employment, or the retention of employees in employment with any employer, upon clearance or approval by any labor organization, except as authorized by Section 8(a) (3) of the Act. WE WILL NOT perform, maintain, or otherwise give effect to the provisions of any agreement with Portland Chapter of Associated General Contractors of America, Inc. (Heavy and Highway Chapter), or any other employer within the meaning of the Act, which require employees to wear the work buttons of their local unions, permit employers to requisition only union workmen through the State and Federal Employment Service, JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 519 permit us to discipline our members by removal from the job for violation of our constitution, bylaws, and working rules, and require all except one employee in each department storeroom or warehouse to belong to our organizations. WE WILL NOT engage in the practice, while administering the terms of any agreement or arrangement for an exclusive hiring hall, of giving preferential dispatches to members of Local No. 501 over nonunion applicants or applicants who are members of other labor organizations. WE WILL NOT cause or attempt to cause Portland Chapter of Associated General Contractors of America, Inc. (Heavy and Highway Chapter) or any other employer within the meaning of the Act to discriminate against any employees or applicants for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act except in the manner permitted in Section 8(a) (3) of the Act. WE WILL reimburse the employees of J. A. Jones Construction Company and Charles H. Tompkins Company, a joint venture d/b/a Jones-Tompkins (Swift Creek Dam Project) for initia- tion fees, dues, and all other moneys which they were illegally required to pay to Local No. 501, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as a result of the unlawful union-security and hiring-hall provisions in our contract with Portland Chapter of Associated General Contractors of America, Inc. (Heavy and Highway Chapter) and the unlawful hiring practices pur- suant thereto. JOINT COUNCIL OF TEAMSTERS No. 37 AFFILI- ATED WITH THE INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, Union. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL No. 501, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL-CIO, Labor Organization. Dated---- ------------ By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and. must not be altered, defaced, or covered by any other material. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was initiated by a charge filed on November 8, 1956, and an amended charge filed on February 5, 1957, by Warren Z. Payne, an individual, charging violations of Section 8(b)(1)(A) and (2) of the Act. The complaint, duly issued on June 25, 1957, originally was a consolidated complaint naming as parties Port- land Chapter, Associated General Contractors of America, Inc. (Heavy and High- way Chapter), and J. A. Jones Construction Company and Charles H. Tompkins Company, a joint venture doing business as Jones-Tompkins, in addition to Joint Council of Teamsters No. 37 and Local No. 501 (each affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO), herein jointly called the Respondents, but separately called Joint Coun- cil 37 and Local 501. However, the CA complaint was severed at the opening of the hearing and the case proceeded solely on the charges filed in the CB case. In substance the complaint alleges that the Respondents entered into a certain agreement with the Portland Chapter, Associated General Contractors of America, Inc., herein called AGC, and J. A. Jones Construction Company and Charles H. Tompkins Company, a joint venture doing business as Jones-Tompkins, containing illegal provisions and maintained such agreement in effect, following practices in observance of the terms of contract, and that on or about November 7, 1956, the Respondents caused Jones-Tompkins to discriminate against Warren Z. Payne in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. An answer was filed on July 15, 1957, on behalf of certain labor organizations who were not made respondents but who were named as parties to the contract. By motion granted at the hearing, this answer was permitted to stand as an answer for the Respondents as well. After admitting and denying certain allegations of the complaint, the Respond- ents' answer alleged that: prior to November 5, 1956, representatives of the Re- spondents and the employers involved entered into an agreement at a prejob con- ference by which the parties agreed that experienced employees of Guy F. Atkinson Company, which had just completed a contract at the Swift Dam in the State of Washington, should be preferentially dispatched to employers herein known as Jones-Tompkins, who were just commencing work as successors to the said Atkin- son Company; because of this agreement, Warren Z. Payne was denied employ- ment by Jones-Tompkins and was not dispatched by Respondent Local 501 on November 7, 1956, because employees of said Atkinson Company on the project were then waiting for employment with Jones-Tompkins; Payne was dispatched by Respondent Local 501 to said Atkinson Company on another project on or about November 27, 1956, and continued in the employ of said Atkinson Company until the latter part of December 1956; he was again dispatched to said Atkinson on another project on January 18, 1957, and continued in this employment until March 26, 1957; and on March 28, 1957, in response to a requisition from Jones-Tompkins the Respondent Local 501 dispatched Payne to said Jones-Tompkins at a time when all the former Atkinson employees available for dispatch had been reemployed. Pursuant to notice, a hearing was held before the Trial Examiner between July 23 and 26, both inclusive, at Portland, Oregon. At the opening of the hearing, the General Counsel introduced into evidence a settlement stipulation entered into on July 22, 1957, by the parties to the CA case and then moved for a severance of that case. This motion was granted over opposition of the Respondents in the CB case, and the latter, upon request, were given time to file a direct appeal to the Board of the ruling. The hearing then proceeded by consent of the Respond- ents pending receipt of ruling by the Board. On July 25, 1957, the Board denied permission to the Respondents to appeal from the ruling severing the cases, with- out prejudice, however, to their right to raise such issue in exceptions and briefs subsequently filed with the Board. During the hearing, the Respondents made a motion to strike the testimony of Warren Payne because, at one point, he refused to answer a question on cross-examination which had not been objected to. I took the motion under advisement. Later, Payne did answer the question and subjected himself to all proper questions on cross-examination. I failed thereafter to rule on the motion during the hearing. Having considered the matter, I now deny the motion. At the close of the hearing the parties requested time in which to file briefs with the Trial Examiner and such time was granted and later was extended to September 16, 1957. On the latter date such briefs were received and have been considered. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 521 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED A. AGC Portland Chapter, Associated General Contractors of America (Heavy and High- way Chapter), and Portland Chapter Associated General Contractors of America, Building Division, both herein called AGC, are associations of employers engaged in construction work as contractors having their principal places of business in Ore- gon and Southwestern Washington. Employer members of AGC, by virtue of their membership therein, designated and authorized AGC as their agent to negotiate collective-bargaining agreements with labor organizations formed among employees in the building trades. Such collective-bargaining agreements prescribe the wages, hours, and working conditions which are observed by the employer members of AGC. Among the employers that comprise the membership of AGC there are individual local contractors who annually perform construction work valued in excess of $100,000 for business enterprises that annually produce and ship goods valued in excess of $100,000 or perform services valued in excess of $100,000, which goods are delivered or services are performed at places outside the State in which each said business enterprise is located. In addition there are individual contractors who annually perform construction work valued in excess of $100,000 at locations outside the State in which they have their respective places of business. Also among the members there are individual contractors who annually perform services for the Government of the United States relating directly to the national defense valued in excess of $100,000. The value of construction in each of the categories mentioned above performed annually by the constituent members of AGC, exceeds $10,000,000. AGC in negotiating and executing the agreements adopted on behalf of its members is conceded to be an agent of said employer mem- bers and therefore is an employer within the meaning of Section 2(2) of the Act. Jurisdiction of the Board is not contested. B. Jones-Tompkins J. A. Jones Construction Company, a North Carolina corporation, and Charles H. Tompkins Company, a District of Columbia corporation, are engaged in a joint venture doing business as Jones-Tompkins in the performance of a construction contract in Washington, performance of which was commenced about November 7, 1956, and which is expected to be in performance for about 1 year. The con- struction contract is valued in excess of $18,000,000. This contract involves work in construction of the Swift Creek Dam near Cougar, Washington, for the Pacific Power & Light Company. Since about October 22, 1956, Jones-Tompkins has been a member of AGC and has concededly come under the terms of the AGC contract. II. THE LABOR ORGANIZATION INVOLVED Joint Council 37 has its office in Portland, Oregon, and is comprised of local unions operating in Oregon and in Southwestern Washington which are affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help- ers of America, AFL-CIO. One of such affiliated locals is Respondent Local 501, which has its principal office in Vancouver, Washington. Joint Council 37 and its constituent local unions, including Local 501, function as the collective-bargaining representative of certain employees in the construction industry respecting their wages, hours, and working conditions, and are labor organizations within the mean- ing of Section 2(5) of the Act. Additional local unions which are affiliated with the said Joint Council and which are parties to the contract involved but are not respondents herein, are Locals Nos. 162, 58, 900, 569, 324, 321, 962, 911, 883, 57, and 689. III. THE UNFAIR LABOR PRACTICES A. The contract provisions AGC on behalf of itself and its members and Joint Council 37, together with certain other parties previously mentioned, are signatories to a collective-bargaining agreement dated February 14, 1955, effective on January 1, 1955, for a period of 3 years. Both Jones-Tompkins and Local 501 are bound by the terms thereof. With one exception hereinafter mentioned, this agreement has been continued in 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect at all times since its execution . Among other provisions , this agreement con- tains the following: ARTICLE V Hiring of Men SECTION 1.(a) The hiring of workmen and the discharging of employees upon the request of the Union shall be in accordance with the Labor Man- agement Relations Act of 1947 , as amended. (b) There shall be no discrimination by the Contractor or the Union in the hiring or discharging of workmen which would be in conflict with or violation of any State or Federal laws, and any requirements as to membership or non- membership in any Union shall be in accordance with the Labor Management Relations Act of 1947, as amended. (c) The Contractor will notify the Union of his need for workmen at least forty-eight (48) hours before the workmen are needed on the job, if possible. The Union will furnish an adequate supply of workmen at the classifications and rates, and under the terms specified herein, when and as requested by the Contractor if such workmen are available. SEC. 2. In the event the Union shall qualify and procure necessary author- ity as required by Section 8(a)(3) of the National Labor Relations Act, as amended, then upon such qualification and procurement of authority , the fol- lowing provisions shall become effective: All workmen employed by the Contractor to perform work within the prop- erly determined craft jurisdiction of the respective Union, shall become mem- bers of the Union after the 31st day , or immediately thereafter , following the beginning of their respective employment , and shall thereafter maintain mem- bership in good standing in the Union as a condition of employment. The removal and replacement of any workmon [sic] upon prior written notice to the contractor shall not interrupt or interfere with the progress of the work. SEC. 3. In the event the Labor Management Relations Act of 1947, as amended, should be further amended or repealed to the extent that subsequent laws and governmental regulations would permit , the foregoing Sections 1 and 2 shall become inoperative and the following two paragraphs (a) and (b) shall be substituted therefore [sic]: (a) All men hired for work covered by this Agreement shall be members of a Local Union signatory to this Agreement, affiliated with the International and who remain affiliated with the Building and Construction Trades Depart- ment of the American Federation of Labor, and shall be cleared through the state employment service, except when hired under the following circumstances: (b) If, after the Contractor has placed orders for men with the Union and said Union shall fail to supply competent men within forty-eight (48) hours of the filing of such application orally or otherwise, the Contractor shall be free to hire the necessary workers where and when he chooses without regard to Union membership , provided however, that such non-union men employed by the Contractor shall apply for membership in the Union when solicited by the representative of the Union . If such non-union employee refuses to join the Union, or for reasons of ineligibility be rejected by the Union , the Contractor agrees not to keep such non-union men on the work longer than necessary to complete a shift, provided , however, that either the Contractor or the Union have available competent workman or workmen to replace the non-union man or men in question without interrupting the progress of the work. SEC. 4. (a) This Agreement shall not apply to men hired or employed as general superintendents, superintendents , general foremen, master mechanics, timekeepers, clerks, messenger boys, watchmen , guards, confidential employees or as office help generally, or their transportation. (b) When hired as apprentices they shall be hired through the Union under the rules governing apprenticeship by the Local Union having jurisdiction over the work.' SEC. 5. The Contractor shall have the right to interview men on the job prior to their employment and shall be the judge of their competency. When applicants dispatched by the Union are judged by the Contractor to be in- competent for the work to be performed , the Contractor shall so advise the Union. The Contractor shall have entire freedom of selectivity in hiring and .1 This subsection is ambiguous. It appears to refer to those mentioned in subsec- tion ( a), but it appears unlikely that such persons would be hired as apprentices. Probably this should be read : "When apprentices are hired , they shall be hired . . ." etc. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 523 discharging. Men ordered by the Contractor who are judged competent by the Contractor, but who are not put to work shall be compensated to the extent of the reporting time of two (2) hours pay at the regular straight time rate plus transportation to and from the job. All employees shall be requisitioned through the Union having jurisdiction over the work; provided however, that the Contractor shall have the right to requisition all Union workmen through the State and Federal Employment Service, when the contract so specifies. Note: For provisions governing regular Reporting Pay and Minimum Pay, see Article X. SEC. 6. Subject to any provisions of this Agreement, or any Conference Board decisions, which might in any way affect the work jurisdiction of a Craft Union signatory hereto, the Contractor agrees that he will cooperate with said Union to maintain the work jurisdiction as established by the Build- ing and Construction Trades Department of the American Federation of Labor. ARTICLE VI Union Membership and Dues The Union assumes all obligations for the continued membership of its mem- bers and the collection of their dues , and the Union shall retain the right to discipline its members at all times, even unto removal from the job for viola- tion of the Constitution, By-Laws, and Working Rules, provided, however, there shall be no stoppages of work while removal and replacement of men of like qualifications and satisfactory to the Contractor are being affected. The provisions of Article VI regarding removal of members from the job, shall be inoperative to the extent they may be prohibited by law. ARTICLE XIII Strikes and Lockouts Barred Any violation by the Union of the preceding paragraph [no strike clause] shall be sufficient cause and justification for the Contractor to hire any em- ployees from any source without any restriction whatsoever, without the Con- tractor being deemed in violation of this Agreement. ARTICLE XIV Posting The Contractor agreed to post a complete copy of this Agreement on his work and the Union will post a sign of the American Federation of Labor. Workmen will be expected at all times to wear the work button of their Local Union prominently displayed on their persons. In addition to the foregoing provisions, under Schedule "A," Wage Scales-1956 & 1957, there are found these provisions: The Contractor shall be allowed one (1) man for each shift in each designated storeroom or warehouse who may be classified by the Contractor as a confi- dential employee and who shall not be required to belong to the Union. All other employees who actually handle materials or parts in such storerooms or warehouses shall belong to the Union. OWNER DRIVERS ALL TYPES OF TRUCKS The owner of a truck may drive one shift of not over eight (8) hours per day, he shall be or become a member of the Union; provided, that if a truck is owned by more than one (1) person, only one (1) of the owners may drive one (1) shift of eight (8) hours in a day. The owner-driver shall be paid the Union scale for labor as designated for the type and size of truck, and for any additional shifts per day the owner will employ Union drivers. Certain of the foregoing provisions appear on their face to be illegal. Depending on the manner in which the provisions of the contract are carried out, certain of them potentially contain elements of illegality. These will be dealt with separately. In general, the tone of the agreement appears to set the stage for closed-shop conditions. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondents apparently concede the illegality of only one provision-article VI above quoted-but with respect to that provision the Respondents contend that it was rescinded on April 9, 1956, more than 6 months before the filing of the charge, and has not relevance here. There was introduced in evidence by the Re- spondents a photostatic copy of a carbon copy of a letter reading as follows: Mr. MARK HOLMES, Representative Joint Council of Teamsters No. 37, 1020 N.E. Third Avenue, Portland, Oregon. APRIL 9, 1956. DEAR MR. HOLMES: It has come to our attention that the following provi- sion contained in Article VI of our 1955-1956-1957 Agreement is in violation of the law. Therefore, it is our intention to consider it as no longer being of further force and effect. .. and the Union shall retain the right to discipline its members at all times, even unto removal from the job for violation of the Constitution, By-Laws and Work Rules...." Your cooperation in concurring with the contents of this letter in writing, we feel will be of benefit in eliminating further action being taken by the N.L.R.B.2 Very truly yours, AHH:jj cc: Portland Chapter, Bldg. Div., AGC Portland Home Builders Assn., Inc. PORTLAND CHAPTER, ASSOCIATED GENERAL CONTRACTORS, A. H. HARDING, Manager. Mr. Hugh L. Barzee, Legal Counsel Holmes, the addressee of the letter, testified that after receipt of the letter, he tele- phoned to the writer of the letter and said that "we had no intention of working any such rule as was implied there because it was contrary to law, and that we would straighten it out in our next negotiations. We would delete it from the contract." The note at the foot of the letter suggests that copies were sent to the parties there shown, but there is no evidence that they were in fact sent. Furthermore, for all that appears, neither the constituent locals of Joint Counsel 37 nor the mem- bers of AGC were notified of the rescission of article VI of the contract. From Holmes' testimony it would appear that the contract was to remain without change (although article VI was not given effect) until the end of 1957 when a new con- tract would be negotiated; so article VI has never been effectively deleted from the current contract. Counsel for the Respondents must have appreciated the fact that the illegality had not been effectively remedied by the foregoing letter and telephone conversation, for, at the hearing, he offered, on behalf of the Respondents, to post the "usual notices" to the effect that "that language is ineffective and of no account." This offer I deem insufficient to effectuate the policies of the Act. The general language in the last paragraph of article VI, above quoted (purporting to make "the provisions . . . regarding removal of members from the job ... inoperative to the extent they may be prohibited by law") does not remove the coercive effect of such provision which is not limited in operation to businesses not affecting interstate commerce.3 It may be argued that the language here differs from that in the Shuck case in that the contract language in that case was to be deemed operative until "held" illegal, whereas, by the contract at hand, the provisions were made "inopera- tive to the extent they may be prohibited by law." This language could embrace present illegality without reference to judicial ruling as well as illegality pronounced after the contract was made. But to the extent that the language was intended to exclude operations affecting interstate commerce, it is too vague and indefinite; and insofar as it purports to make the language inoperative in cases of existing, but unpronounced illegality, it is a poor choice of language to thrust upon laymen who S The addressee of the letter testified that he had received the original of the exhibit but he did not testify as to when he had received It. That the year-date of the letter might be an error and that the letter may actually have been written in April 1957 is suggested by the last paragraph of the letter. BN.L.R.B. v. E. F. Shuck Construction Co., Inc., 243 F. 2d 519 (C.A. 9) and cases there cited. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 525 cannot be expected to know when the language would, and when it would not be operative. Such language is ineffective to avoid illegality in the contract .4 Con- tracts which fail to specify situations to which illegal language is not to apply, when entrusted to administration and enforcement by those unversed in the law, cannot be expected to be confined in operation within legal limits. Coming as it does in a separate article from article V, the illegal language of article VI is not clearly limited by the language of article V, section 1, but even if a court might construe it to be so limited, it is unlikely that a layman would know the provisions of the Act and, as a saving clause , the language in article V is no more effective than that in Article VI. I find, therefore, that wholly apart from enforcement or nonenforce- ment of article VI, the presence of the language in the contract and the failure properly to give notice of deletion produce a coercive effect contrary to the pro- visions of Section 8(b)(1)(A) of the Act.5 However, in the absence of any evi- dence that within the 6-month period before the filing of the charge the Respondents sought to enforce the provisions of article VI of the contract, I make no finding that the Respondents by maintaining article VI undeleted in the contract, violated Section 8(b)(2) of the Act.6 Counsel for the General Counsel, at the hearing, called attention to certain lan- guage in the preamble to the 1955-57 contract reading as follows: The terns and conditions of the Labor Agreement between the Portland Chap- ter, the Associated General Contractors of America, Inc. and the Joint Council of Teamsters No. 37, originally represented by the Allied Heavy Construction and Highway Crafts, executed in the year 1938 and subsequently adopted and extended during the years thereafter to date, are hereby adopted and further extended for the years of 1955, 1956 and 1957, as a separate agreement be- tween the parties mentioned in the paragraphs above subject to the addition of clarifying language and changes in classifications and wage rates as described in the schedules attached hereto for the year 1955. The suggestion is that closed-shop provisions for the 1938 contract were perpetuated by this language in the current contract without specific mention of the closed shop. It is conceded that before the Act, the Respondent Joint Council 37 had a closed- shop contract. No copy of the 1938 contract could be found, however, to ascer- tain the language or to deduce the reason for inclusion of the quoted language in the current agreement, and no one seemed to have any clear recollection of the reason for inclusion of such language . I am not satisfied that such reasons as were suggested at the hearing were the correct ones. It appears likely that the language of the preamble was, for years , copied into succeeding contracts and that it was so copied into the current contract with no thought of the reason therefor or the effect thereof. However, even if at one time the purpose of such language in the preamble was to perpetuate the closed-shop provisions of the 1938 contract, I con- clude that this would not be the legal effect with respect to the current contract because the closed-shop provisions of earlier contracts would be inconsistent with the current contract provisions of article V for a union shop, quoted above, and, as the later expression of intention , the language of the latter would override any former inconsistent provisions . Furthermore, the current contract contains a clause expressly stating that it supersedes any existing agreement between the parties with respect to any work covered by the current agreement. Counsel for the General Counsel does not appear to have followed up this implied contention of illegality in his brief, and I presume it to be dropped . In any event, I doubt that parties to the contract or employees would necessarily interpret the preamble as calling for a closed shop. I find such language, therefore, to be superfluous verbiage, of no force or effect. Other apparent carry-overs from the old closed-shop contract are less excusable. Article XIV requires all workmen, apparently without respect to membership or the 31-day period provided for in article V, section 2, to wear union buttons. There is no evidence of enforcement of this provision within the 31-day period provided for acquiring membership , but, again, its presence in the contract without limiting it to employees who work for employers not engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and without limitation as to time when mem- bership is required under article V, section 2, of the contract , to the extent that the language has been maintained in the contract within a period of 6 months prior to the filing of the charge, restrains and coerces employees in the exercise of the 4 See Jandel Furs, 100 NLRB 1390. 5Bell Aircraft Corporation, 105 NLRB 755. 6 Port Chester Electrical Construction Corporation , 97 NLRB 354. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights guaranteed in Section 7 of the Act and constitutes a violation of Section 8(b)(1)(A) of the Act.7 The extracts quoted above, from schedule "A" wage scales-1956 and 1957, at- tached to the contract and made a part thereof by article VIII, contain language which requires certain employees to be union members, apparently without any grace period. In my opinion this language is not rendered innocuous by the fact that article V, section 1(a) of the contract provides that the hiring of workmen "shall be in accordance with the Labor Management Relations Act of 1947, as amended." It is not to be expected that employees or prospective employees reading the copy of the contract posted in accordance with article XIV of the contract would know enough about the law to interpret the language of schedule "A" as requiring mem- bership in "the Union" only after 30 days from the date of hire. I find, therefore, that without regard to how these provisions are enforced, the language restrains and coerces employees in violation of Section 8(b)(1)(A) of the Act and attempts to cause employers to discriminate against employees in violation of Section 8(a)(3) of the Act, thus violating Section 8(b)(2) of the Act. The current contract requires contractors to requisition all employees "through the Union having jurisdiction of the work," thus providing for an exclusive hiring hall. The only major exception to this (as the contract stands, with article V, section 3 inoperative) is the right of the contractor "to requisition all Union workmen through the State and Federal Employment Service, where the contract [i.e., the public con- tract] so specifies," and to hire independently if the union is unable to furnish work- men within 48 hours after requisition. As no exception is made with respect to nonunion workmen, they presumably could not be requisitioned through the said employment service but would have to be requisitioned, if at all, through the union having jurisdiction of the work. Thus, this clause also violates the same sections of the Act to the extent that, in operations affecting commerce within the meaning of the Act, employers are permitted to requisition through employment services only union members. Provisions regarding the employer's "freedom of selectivity" of employees will be discussed below. Article V, section 2, provides for a union shop "in the event the Union shall qualify and procure necessary authority as required by Section 8(a)(3) of the Na- tional Labor Relations Act, as amended. . . Compliance with the requirements of the Act is not questioned by the General Counsel. Nor did counsel raise any question of illegality because of the fact that the contract does not, on its face, provide any grace period following the making of the contract, although 31 days' grace is given from date of hire. B. Administration of the hiring-hall agreement In the operation of its hiring hall, Local 501 maintains a number of records. What it calls the "qualifications" of members (a term that I infer is used in the sense of ability to operate a certain type or certain types of vehicles and does not imply a particular degree of skill, a kind of information that the dispatcher would not be likely to possess) it keeps on file cards. When anyone other than a member, whether a member of a sister local or a member of no related union, seeks em- ployment through Local 501, it first interviews him. In this interview, a record of which is usually kept in a notebook file, Local 501 may learn something about the man's union membership,8 his qualifications, his preferences as to job, hours, and the like .9 At this interview, which is conducted by the dispatcher, the job hunter is told to "check back" at least once a week. No effort is made after this interview to refer the job hunter to a job before he comes in again to sign the open roster or, if he is out of town, before he checks back by telephoning in or writing a letter or card. The open roster is available for anyone to sign when he appears in person, whether or not he is a member. This list is used principally to fill day-to-day jobs (particularly with the transfer companies) although it may be used also to select men for lengthier jobs. A third list (besides the register and open roster) is a list of 7 Cf. Graber Dlannfacturing Company, Inc., 111 NLRB 167; Safeway Stores, Incorpo- rated, 110 NLRB 1718 ; N.L.R.B . v. Republic Aviation Corporation, 324 U . S. 793. 8 The witness Donald L . Lowery testified that on May 22 , 1957 , he asked for employ- ment on Swift Creek Dam and that the dispatcher asked him if he was a member of Local 501. D The failure of Local 501 to make a record of the first visit of Warren Payne, whose case is hereinafter related , raises a doubt as to whether •or not such a record is kept before the job hunter expresses an interest in transferring his membership from another local, but the matter was not explored and I make no finding that any exception existed. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 527. those who telephone or write to Local 501 regarding a job. This will be called the telephone list. When an employer calls in for a man or men, the dispatcher selects the requisite number from those on either the telephone list or the roster, gives them dispatch slips, and enters their names in another notebook record, tabulated by names of employers, under the name of the proper employer. On what are called by Local 501 the larger jobs, employees are expected to join within 30 days (the contract provides for 31 days) after the date of hire. On the smaller jobs, Local 501 does not seek enforcement of the union-shop clause for 60 days after date of hire and apparently does not always require employees to be requisitioned through its office. The exclusive hiring-hall provision appears to be enforced, at least on the larger jobs, with rare exceptions. Article V, section 5, of the contract requires the con- tractor to requisition men through the union having jurisdiction of the work. If men are dispatched whom the contractor determines to be incompetent, the contract permits him to reject or discharge such men. But replacements therefor, as I read the contract, are again required to be procured by requisition to the union in- volved. Although the contract provides that "the Contractor shall have entire freedom of selectivity in hiring and discharge," this 'appears to mean only that the contractor may reject or discharge as he pleases. It does not mean that he can get his men from any source other than the union having jurisdiction of the work. The only exception allowed by the contract is in the event of a violation of article XIII (no-strike clause) above quoted, when a contractor may "hire any employees from any source without any restriction whatsoever. Eunice Kindler, dis- patcher for Local 501, testified that a number of men had been brought to the Swift Creek Dam project by Jones-Tompkins within a short time before the hear- ing, suggesting that an exclusive hiring hall was not practiced. Since these cases occurred after the complaint was issued, if not after settlement was reached in the CA case, it is impossible to tell whether or not such practice would have been followed earlier. It is doubtful that it would, for as late as March 4, 1957 (as evidenced by a Respondent's exhibit) the project superintendent for Jones-Tompkins issued a notice to all superintendents and foremen stating, in part , "It has been brought to my attention that unemployed workmen are making statements that they have been told by our supervision they will be able to go to work on the next order. [I infer that this means order for men placed with Local 501 or unions of other crafts.] There are to be no promises of work made to anyone under any circumstance. . . Do not request workmen by name.... . An earlier memoran- dum, to which the last one refers, directs that men be requisitioned by craft only. But even though some 12 or 16 employees of Jones-Tompkins were recently brought on the job from outside the jurisdiction of Local 501, Jones-Tompkins continued to send Local 501 (and the latter expected ) a confirmation requisition on which would be listed either by Jones-Tompkins or, more usually, by an agent of Local 501, the names of the men put on the job. Kindler testified that she thought all twelve men whose names were shown on Requisition No. 51 had be- come members of Local 501 by transfer. Earlier exceptions to supplying local men on the Jones-Tompkins job involved men who brought special equipment from another location where Jones-Tompkins had worked. Two such men were employed in January 1957. One, Harry Bluejacket, applied for transfer to Local 501 the day before he went on the job. The other, Rudolph Lundin, applied for transfer of his membership to Local 501 on January 17, a week after he was employed. Donald Orcutt, paymaster for Jones-Tompkins, who did some hiring for that em- ployer, testified that he had instructions that teamsters were to come from Local 501 and that Local 501 was to select the men who were to be dispatched. This was also in accordance with an agreement reached at a prejob conference that men should be requisitioned by number wanted and not by name. Orcutt also testified that when men arrive with equipment, they are expected to make arrange- ments with Local 501 and be in good standing. Kindler testified that companies within the last 2 years had brought men in, particularly on the gas line, but, asked whether or not in such instances the em- ployers had sent in a requisition or confirmation , Kindler answered, "No, not on the small jobs." Kindler was not informed as to whether or not the gas-line con- tractors came in on a national agreement and she had no knowledge of any other arrangements that might have been made. The evidence is not sufficient to prove nonenforcement of the hiring hall agreement. As stated before, the General Counsel does not attack the validity of the union- shop clause of the contract nor question the propriety of it with reference to Jones- Tompkins, and as the union-shop provision is severable from the provisions here- tofore found illegal, it is not affected by the findings as to them. But the General 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel does contend that the practices of Local 501 under the exclusive hiring- hall provisions of the contract give rise to favoritism toward its own members and that Local 501 does thereby cause or attempt to cause employers to discriminate in regard to the hire of their employees. Kindler testified that assignments of work are made from the open roster or telephone list in the order of signing up, although she was not willing to say that there had not been exceptions made. She also testified that those out of work longest were given preferences in alignments. If the latter means those who have been out of work longest but who have not been on the open roster or telephone list longest, this, in itself, would be an excep- tion, but I believe that she meant those who had been longest on the out-of-work list. Local 501 concedes that it does give preference to its own members,1° and it seems to justify this practice, first, on the ground that the dispatcher is better acquainted with the qualifications of its members and, second, that Local 501 attempts to service residents within its territory (local people) before residents of other areas who could be serviced by local unions in the area in which they live. With respect to the first reason, it may be said that the contract does not make the local union a guarantor of competence. "Qualifications," as the word is used, merely means being a truckdriver experienced in the operation of specific types of equipment, The contract leaves the determination of competence to the em- ployer.ll When an applicant for a job who is not a member of Local 501 is inter- viewed by the dispatcher, the latter has ample opportunity to determine the types of vehicles with which the applicant has had experience. A record is kept of such interviews, so Local 501 cannot say that it does not have equal knowledge of the qualifications of nonmembers who apply for jobs. Kindler testified that she would not always take an applicant's word for what he could do or what experi- ence he had. In this respect she was going even farther than the employers did because there is evidence that they would have hired men such as Warren Payne after he stated his own experience and qualifications. Kindler was not required by the hiring-hall agreement to go this far and I am convinced that she did so only in order to give preference to members of Local 501. With respect to the second explanation-residence-it may be said that the Act specifies the extent to which conditions may be attached to employment, and residence is not a statutory basis for discrimination.12 Furthermore, here it appears to be closely tied to membership and I believe the latter to be the controlling factor. Admittedly, therefore, Local 501 has attached discriminatory conditions of employment prece- dent to dispatch, and since the contract requires the requisition of employees through the local union, Local 501 can and does attach a condition of membership to dispatch of job seekers so long as members are qualified and available for the job. I infer that the term "nonmembers" as used in reference to dispatch after all qualified and available members are dispatched, refers primarily to members of sister locals, for Local 501 exhibited a tendency not to consider for any employ- ment an applicant who is a member of no affiliated union. Donald Lowery testi- fied that on May 22, 1957, he spoke with the dispatcher for Local 501 (Eunice Kindler) asking for an application to "sign up" for work on the Swift Creek Dam. Kindler asked if he was a member of Local 501. Lowery told her that he was not, that he had belonged to Local 58 but that he did not get a withdrawal card when he went into military service in '1952. Kindler told him that he would have to be reinstated either in Local 501 or in Local 58 and that it was better that he be reinstated in his own local and then transfer to Local 501. Then, too, Kindler 11 Counsel for the Respondents in his brief argues that the admission of Eunice Kindler, the dispatcher, and of Reginald Mikesell, secretary-treasurer, who is the chief officer of Local 501, that favoritism would be shown a member over a nonmember, qualifications being equal, was a theoretical matter not supported by any evidence that the situation had ever arisen. I do not put the same interpretation on the testimony as does counsel. For example, Milcesell testified that it was the practice of Local 501 in cases of equal ability and availability to send out the member if the employer had not specifically re- quested the nonmember, and Kindler testified that she did so but attempted to justify it. Specific instances of a regular practice are not required to establish the practice where it admittedly exists. 11 Article V, sec. 5 : "The Contractor shall have the right to interview men on the job prior to their employment and shall be the judge of their competency . . . The con- tract also gives the employer the right to refuse to hire anyone referred to him in addi- tion to the privilege of discharging men already hired. 12 United Brotherhood of Carpenters and Joiners of America, Local No. 1281 (J. C. 2Toespflug Company), 109 NLRB 874. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 529 said, he would have to have a job in the area of Local 58 before his transfer came through.13 Lowery signed the open roster at Local 501 on May 22, 1957, but had not been dispatched prior to the date of his testimony at the hearing. On the entire record, I find that, by using its exclusive hiring hall to give its own members preference to jobs over nonmembers, including members of affiliated locals, Local 501 has restrained and coerced employees in the rights guaranteed in Section 7 of the Act and continues so to do, in violation of Section 8(b)(1)(A) of the Act. C. Causing discrimination as to Payne 1. Arrangement of Local 501 with Jones-Tompkins Jones-Tompkins arrived to begin its work on Swift Creek Dam just as the Guy F. Atkinson Company, hereinafter called Atkinson, was concluding its performance there. The Jones-Tompkins' work was actually a continuation of the work that had been done by Atkinson. Approximately 30 members of Local 501 engaged in work on cofferdams for Atkinson, exclusive of men working in tunnels driving what are known as "dumptors" or "dumpies," were about to be terminated. Atkin- son concluded work on Friday, November 2, 1956, and Jones-Tompkins was to begin on Monday, November 5. However, Donald P. Orcutt, paymaster for Jones- Tompkins, arrived at the dam site on or about October 29 and for the first week of operations, it was his function to requisition employees as needed. On the afternoon of November 2, 1956, a prejob conference was held at the AGC office in Portland, Oregon. This was attended by representatives of Jones- Tompkins, the Scheff Company (subcontractors on the tunnel), Joint Council 37, Local 501, and various other unions, including Operating Engineers and Laborers. Testimony on behalf of the Respondents indicated that at this meeting, Paul Swan- son, vice president of the J. A. Jones Construction Company, on behalf of Jones- Tompkins agreed to take over the 30 Atkinson employees (exclusive of the dumpy drivers), 6 of them immediately, the rest by requisition as more equipment arrived. Requisitions were agreed to be by number of men desired and not by name. Because some of the testimony appeared conflicting and because there is some reason to believe that Jones-Tompkins did not promptly notify its hiring agents of this agreement, I am not thoroughly satisfied that the record accurately reflects the nature or terms of this agreement, but counsel for the General Counsel appar- ently conceded the existence of an agreement by which Jones-Tompkins was to hire the thirty former Atkinson employees before any others were employed. For the purposes of this report, therefore, I shall treat this to be the fact. Counsel for the General Counsel also stated his position to be that such agreement was not illegal. This being so, I accept that position for the purposes of this case. The General Counsel also conceded at the conclusion of the hearing that Local 501, in carrying out the agreement and dispatching former Atkinson employees, did not violate the Act. He further appears to concede that when former Atkin- son employees, once employed and then laid off by Jones-Tompkins, were later accorded priority for redispatch to Jones-Tompkins by Local 501, no violation of the Act took place, even though this may have resulted in preference to members of Local 501. With respect to any employees of Jones-Tompkins, including War- ren Payne, the General Counsel contends (abandoning the date of November 7, 1956, alleged in the complaint) that the contract was first illegally applied by Local 501 on March 4, 1957. In other words, I take it, he is conceding that Local 501 did not engage in its admitted practice of granting preference in dis- patch to its own members in such a manner as to amount to causing or attempt- ing to cause Jones-Tompkins to discriminate against Payne or any other employee in violation of the Act before March 4, 1957. Despite these concessions, I believe that, for background purposes, a chronology of events beginning with late October 1956 will assist in understanding later events. 2. Chronology of events relating to Payne14 Warren Payne joined Local 58, a party to the previously described contract, at Longview, Washington, in 1950. Later, as he worked in different locations within 13 This suggests that, as in the case of transfers, membership would not be accepted until the applicant for membership had procured a job. 14 Counsel for the Respondents attacked Payne's credibility as a witness . Both from my observation of him and because other witnesses and evidence tended to corroborate him, I find him to be a credible witness, even if at times mistaken in minor details. In the latter respect, he was no worse than most of the other witnesses. 505395-59-vol. 12 2-3 5 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the jurisdiction of Joint Council 37, he transferred his membership to various locals. While a member of Local 58 , Payne worked on the Yale Dam in south- west Washington as a Euclid truckdriver. Local 58 and Local 501 had joint juris- diction of the work there, alternating in filling requisitions for men , and, as a consequence, Payne was personally known to Kindler, the dispatcher for Local 501, as a qualified Euclid driver. In the late summer of 1956 , while a member of Local 321 at Bend, Oregon, Payne worked on the Pelton Dam near Madras, Oregon. When he was laid off there, he worked for a time in Madras for a freight line . Then, learning that a job was going to open up at The Dalles, Oregon, Payne telephoned Kindler early in October 1956 and told her that he had heard that Atkinson had placed an order for 10 Euclid drivers at The Dalles. He asked her if that was true and asked what his chances were of going to work. Kindler replied that they did have a call for Euclid drivers but that she thought she had enough of her own local men to fill the order . She said, however, that he could call back at 2 p.m. At 2 p.m. the same day, Payne again telephoned Kindler and the latter told him that she had filled the order with her own men. On October 22, Payne paid his dues to the Bend local, drove to Vancouver, Washington, and on October 23 went to the office of Local 501 to apply for a transfer . There, Payne was interviewed by Kindler 's assistant, Marie Johnson, and he gave her his name, address , and telephone number. This interview was re- corded in the record known as the register , where he was described as a Euclid operator.15 At this interview, Payne explained that he planned to return to live in the vicinity of Cougar, Washington, where he had lived for many years and where his parents then lived , and he requested transfer to Local 501. The girl who was interviewing him then summoned Kindler. Kindler started to take the necessary information from Payne , but then told him that there was no work, that Local 501 had a large number of men out of work and that there was no use accepting his transfer because there was nothing there for him to do. It is con- ceded by Local 501 that, unless the applicant for transfer insists, Local 501 will not accept the transfer until the applicant has procured a job in the area or has been dispatched to a job by Local 501. Following Kindler's declination to accept the transfer, Payne did not attempt to complete his application for transfer or insist on the transfer . Before he left, Kindler told him that he should check back at least once a week and that he could either sign the open roster or telephone in or write a letter or card. Payne came to the office of Local 501 on October 29 and signed the open roster. At this time, he asked Kindler if there was any work, and she said that there were still a lot of men out of work. About November 1, Payne moved from Longview to Cougar and visited the Swift Creek Dam site. At this time Jones-Tompkins had just begun to move in equipment . Payne spoke to Swanson , vice president of the Jones Company, told him he was a Euclid driver and was looking for work , and asked if he might leave his name. Swanson told him he could write his name on a slip and if they could use him they would let him know. They never did. Payne went to the job site practically every day until November 7. Meanwhile , on November 5, operations started with the six men taken over from Atkinson. The Atkinson strawboss con- tinued on the job for Jones-Tompkins , and he had selected six men to work at the opening of operations by Jones-Tompkins before the prejob conference was held. On November 6 Payne again spoke to Kindler , who told him that they would not hire outside men until they got their own men back to work. Shortly before noon on November 7, Payne went to the Jones-Tompkins job and spoke to Donald Orcutt, paymaster for Jones-Tompkins, who did some hiring the first week of operations . Orcutt apparently had learned that Payne was a Euclid driver and told him he understood that they were going to hire some men that day and to talk to Richard Fegert , the general foreman. Payne told Fegert that he had worked for Jones-Tompkins at the Palisades Dam. Fegert told Payne that he would give him a job and that he should go back to the office, where Fegert would have Orcutt call the union hall for clearance . When Payne spoke with Orcutt about this , Orcutt said that it was close to noon and the union hall would be closed , so Payne should return about 1 o'clock and he would call then. When Payne returned at 1 p.m ., Emil Olson, business representative of Local 501, was speaking with Orcutt. After Olson left the office, Payne asked Orcutt if he had got the clearance . Orcutt answered that Olson would not clear him. Olson and Mikesell testified that after the prejob conference , when it was agreed that 'b A note inserted on the interview record said that Payne had registered 2 months earlier but had not checked back since. No reference was made to his telephone call early in October. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 531 Jones-Tompkins would take over the Atkinson men, the Atkinson men along with a few others had held a meeting and decided that they wanted to continue with Jones-Tompkins. Olson further testified that he was instructed to notify Jones- Tompkins that the men could, and wanted to, continue. He testified that he told Fegert this, but it does not appear when. In view of Fegert's offer to employ Payne, it is questionable if he learned of the prejob agreement before noon on November 7. And apparently the same was true of Orcutt, who knew of no such agreement with Local 501 until Olson spoke with him on November 7. After Orcutt had told Payne that he had not been cleared, Payne followed Olson and asked him why he would not give him a clearance. According to Payne, Olson said he could not give him a clearance because he still had men on the bench. According to Olson he told Payne he was not at the office and could not clear him. The inference from Olson's testimony is that he could not clear Payne with- out checking the out-of-work lists to determine if he was in line to be dispatched. Olson said nothing to Payne about a prejob agreement. Payne testified that he told Olson that, if the other men (i.e., those who were on the bench ) wanted work, they could get out and find a job and that Olson had replied that Local 501 did not allow solicitation of work. Payne further testified without direct denial. that Olson had said if he gave him a clearance, ". . what would the rest of the boys think? You don't belong to Local 501, so if I gave you a clearance what would they say if they saw you working?" Payne then asked pointblank, "Will you give me a clearance?" Olson replied that he was not giving him a clearance. Payne returned to the Jones-Tompkins office, and Orcutt asked if he had talked with Olson. Payne replied that he had, and Orcutt asked if it did any good. Payne told him it had not. At this point, Fegert drove up and asked if Payne had got a clearance, and Payne told him that Olson would not give him. one. In a conversation that followed, Fegert suggested that Payne go to "thee Labor Board" if he wanted to do something about it. On November 8, Payne filed the charge that initiated this case. On November 12, Payne was making inquiries for a job at J. N. and M. J. Conley Company, a member of AGC and a party to its agreement, who were engaged in crushing rock for use on the project. Payne spoke with a man whom, he identified as Superintendent Hal Fackler, but Payne was probably mistaken about the name, for Olson testified the superintendent' s name was Harold Gross. and that he saw Payne speaking with Gross. In any event Payne was speaking with the superintendent, and he asked if he could have a job driving a Euclid; The superintendent told him he was going to call for some men in the morning, and Payne asked, "What about me?" The superintendent asked him if he had' had any experience. Payne said that he had, and the superintendent asked if Payne belonged to the union. Payne replied that he did but not to Local 501. The superintendent then told him that he would have to be cleared. At this point Olson walked up. Payne and Olson gave slightly different accounts of the con- versation, but both agreed that the superintendent asked Olson to give a clearance. for Payne. According to Payne, Olson shook his head and said, "I'll tell you about this boy, here. He has got me in court over an unfair labor law . . . I'm not giving him no clearance to go to work." 16 According to Olson his reply was, "I'm not going to enter into it. If you want to put him to work you put him to work. I am not getting in this here because I have an unfair labor practice charge against me, and I want no part of it. If you want to put him to work,. that's fine as far as I am concerned. I'm not going to get in it." Whatever state- ment Olson made , it is obvious that the superintendent did not hire Payne because the latter did not have clearance. Olson left and returned to his truck. Payne followed him and asked Olson why he would not clear him. Olson pointed to, the superintendent and said, "There goes the superintendent over there. You talk to him." On cross-examination, Payne testified that Olson added, "If he wants to hire you, he'll stick his own neck out." Olson then drove off. This incident is not alleged in the complaint , and is not contended by the General Counsel, to be the basis for any remedy in the instant case. Thereafter Payne kept in touch with Kindler and, on November 21, Kindler wrote Payne a letter at Cougar, Washington, notifying him that Local 501 had an opening for a "Euc Skinner" on The Dalles Dam for Tuesday, November 27, and asked him to call or check in on Monday morning, November 26, to indicate his position in the matter. On that Monday, Payne went to the Local 501 office,. paid his transfer fees and dues for the Bend local, and Kindler accepted his appli- 19 Taken from Payne's testimony on cross -examination which differed in minor details from his testimony on direct. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation for transfer of membership. She then gave Payne a dispatch to Atkinson- Ostrander at The Dalles. Payne went to work on the job to which he had been dispatched on Novem- ber 27 and was laid off on December 14. He contacted Kindler again on about December 17. On December 27 he stopped at the hall and paid his dues, his transfer having become effective on December 12. On January 18, 1957, Kindler called Payne and notified him that he could return to The Dalles. Payne re- turned but worked only for 2 hours because he was notified of his father's death. The following day, however, the job was shut down, so he could not return to work. He was not called back on the job again until January 31. Payne thought that he had picked up another dispatch slip before returning on this occasion. This job lasted until 2 a.m. on February 24. Upon completion of the work, Payne drove to Longview, where he remained until February 28. Then he drove to Vancouver, stopped in and paid his dues, and inquired about work.17 Kindler told him there was nothing then. On March 4, 1957, Payne again talked with Kindler. Kindler had no recollec- tion of the conversation. A friend of Payne's, Donald Lowery, testified he was with Payne on March 4 and overheard the conversation. As Lowery was with Payne at the office of Local 501 on February 28 and March 20 also, and as both Payne and Lowery were at first confused about dates and the occasion for stop- ping at the Local 501 office,18 a question enters my mind as to whether the con- versation related as taking place on March 4 may not actually have taken place on March 20, but because Kindler's memory was vague, and because the subject matter of the conversation was known by Kindler as early as March 4, I accept the testimony of Payne and Lowery and find March 4 to be the date of the following conversation. Payne asked Kindler what was going on, and Kindler replied that almost all the old men were out (i.e., working), that Local 501 had a call and it would not be long before she could dispatch him. She asked if he would take a Mack or if he wanted to hold out for a Euclid. The pay scale under the contract is by truck capacity and Euclids are larger than Macks and so would normally bring a higher wage rate. Payne told her he would take any- thing on four wheels. Kindler told him he might be called shortly. Payne signed the roster on March 12 and again went to the hall on March 20. On the latter date, Kindler reminded Payne that he had said he could handle Macks and said that there was a possibility that there might be something going on "right away." However, Kindler did not call him until March 28, when she dispatched him to Jones-Tompkins as a Mack driver . Despite the contract rates, Jones-Tompkins paid the same rate for Mack operators as for Euclids, and with the exception of one man, it transferred Mack drivers from Macks to Euclids as the occasion required.19 It is the contention of counsel for the General Counsel that Kindler could have dispatched Payne to Jones-Tompkins on March 4 as a Mack driver but that instead she dispatched others on a preferential basis and that this violated the Act. An analysis of this contention requires a determination first of whether or not the assumption of fact that Payne could have been dispatched on March 4 is war- ranted. If it is found that he could have been, then, second, it must be ascer- tained if the failure to dispatch Payne on that date tended to interfere with his or any employee's rights as guaranteed in Section 7 of the Act, or caused any employer to discriminate against Payne in violation of Section 8(a)(3) of the Act. As previously set forth, following a period of employment, Payne signed the roster of unemployed on February 28, 1957. Following a nondiscriminatory sys- tem of dispatch, Local 501 would have dispatched job seekers in the order of their listing on the roster and telephone lists, if qualified , regardless of union affiliation. Apparently regardless of when employees signed up, Local 501 treated laid-off employees as having a right to reemployment by the same employer in preference to other job seekers. But this practice is not in itself contended by the General Counsel to be a violation of the Act. In fact it coincided with the policy of Jones-Tompkins, who indicated in January 1957 that it wished to reemploy those 17 Although Payne did not so testify, Kindler testified that he had telephoned about work on February 25. is Both at first testified that they had stopped at Local 501 on March 4 on their return from a trip to Redding, California, in search for work. Later they corrected the date of their trip to Redding to March 17, on return from which they stopped at the office of Local 501, on March 20. They both were sure, however, that Lowery had been with Payne on February 28 and March 4 when he went to the union hall. 19 The Macks were apparently used only when the Euclids were in need of repairs. JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 533 previously laid off. Between February 28, when Payne signed for work, and March 28, when he was dispatched, Kindler had dispatched a number of men to jobs with Jones-Tompkins. Some of these men (about 12 of them) had been previously employed and laid off by Jones-Tompkins. As to them, I assume, the General Counsel raises no issue that their dispatch before Payne's was a violation of the Act. However, between those dates, Local 501 also dispatched to Jones- Tompkins 16 men who had not previously been employed by Jones-Tompkins. Six of the sixteen were assigned to types of jobs other than Euclid or Mack drivers and, therefore, they were not in competition with Payne, who presumably was not qualified for such jobs. As to the remaining 10, the evidence is not completely clear. Since the roster and telephone lists are not in evidence, I have no means of determining when, if at all, such employees listed themselves as wanting jobs. With the exception of one man, who clearly was not listed as a job seeker before his dispatch, the others may have been listed and waiting for jobs longer than Payne. Two had been waiting since January. There are bits of evidence from which it may be suspected that some were dispatched on a basis other than length of waiting time, but such suspicions are not evidence, and I do not believe the evidence is sufficient to warrant an inference that such men were favored over Payne because they were older members or because of some reason which could not be justified under the Act. Kindler at one point testified that she thought that the men who had been employed on the Swift Creek Dam project by Atkinson as dumpy drivers had a right to preference in dispatch as Euclid drivers over those who had not worked at the project at all, there is no indication that this belief induced her to dispatch men out of the order in which they were signed up. The dumpy drivers had been laid off on November 2, 1956, and the record does not show whether or not they had been employed between that time and March 1957, when one or more were dispatched to Jones-Tompkins as Euclid operators ahead of Payne's dispatch as a Mack driver. When the call came in for Mack drivers and Local 501 had none so listed, it started making inquiries to locate some. The first three dispatched as Mack drivers were Max Unholz, Edgar Adams, and William Fargo. Adams and Fargo had been waiting for dispatch since the first of the year. Local 501 also explained their dispatch on the ground that Jones-Tompkins, who was trying to get experi -enced Mack drivers, had asked for Adams and Fargo by name because they had worked for Jones-Tompkins on a previous job and had been known to be capable of handling Mack trucks. Orcutt, the paymaster for Jones-Tompkins, did not know of any such request, but in March 1957 he was not doing the hiring and would not necessarily have known of the request. Max Unholz had not signed up for work at all. He was a member who had been out on withdrawal, having a small cement business of his own. Before he went into business for himself, he had been known by Local 501 to be a Mack truck driver. When Jones-Tompkins first called for Mack drivers, it told Olson that they did not want any indiscriminate driver to be operating them, as they were expensive pieces of equipment and their operation was different from the operation of Euclids.20 Therefore, they told Olson, they wanted experienced Mack drivers. Max Unholz' brother worked for Jones-Tompkins and he told Olson that his brother, Max, was an experienced Mack driver. Olson suggested the name to Kindler who arranged to dispatch him. As the evidence indicates that Max Unholz entered on duty on March 4, it is a fair inference that arrangements had been made for his dispatch before Kindler was informed, on March 4, that Payne was able and willing to drive a Mack truck. Counsel for the General Counsel intimated that any experienced Euclid driver could operate a Mack of the type used by Jones-Tompkins, thus suggesting that Kindler should have expected Payne to be capable of driving a Mack. It is ap- parent, however, that Jones-Tompkins did not regard every Euclid driver as com- petent to operate their Mack trucks. Furthermore, I am satisfied that Kindler did not, herself, entertain the belief that Euclid drivers were necessarily competent Mack drivers. Also she believed that the rate of pay for operating Mack trucks for Jones-Tompkins would be lower than for Euclid operators (as was usually the case ) and, unless a driver at his interview indicated that he would accept what apparently was a lower paid job than the one he signed up for, Kindler would be justified in inferring that the driver wanted only the kind of job for which he signed up. Until March 4, therefore, Kindler is not to be presumed to have be- w The type of Mack trucks brought onto the job by Jones-Tompkins had 30 different gear ratios in forward speeds as against 3 for the Euclids. These ratios were accom- plished by combining five regular forward speeds with a three-speed Browning and an over-and-under drive. :534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -lieved that Payne could or would drive a Mack, and since I infer that Max Unholz had already been dispatched before Kindler spoke with Payne on March 4, I find no attempt on the part of Local 501 to discriminate against Payne on that date. -Because I have no means of determining when the other men dispatched between March 4 and March 28 had applied for work assignments, I must presume that they all signed up before Payne did.21 The result is that Payne was dispatched in accordance with routine and nondiscriminatory procedure, so far as members go. I find no basis for inferring that Payne, a member of Local 501 since December 1956, was discriminated against, as between members, because of anything that had happened in November 1956. If Olson had any personal feelings against Payne, it does not convincingly appear that he influenced Kindler to discriminate against Payne and Kindler exhibited no evidence of animus. On the contrary, Kindler gave evidence of trying to be fair within the rules of procedure of Local 501 which she believed (mistakenly) to be the proper ones. On all the evidence, therefore, I find that the Respondents have not restrained or coerced Warren Payne in the exercise of the rights guaranteed in Section 7 of the Act and have not caused or attempted to cause Jones-Tompkins to dis- criminate against him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of employers 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 com- merce and the free flow of commerce. V. THE REMEDY As it has been found that the Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Counsel for the General Counsel, in his briefs, proposes that the remedy should include a recommended order for restitution of dues paid by all employees hired by Jones-Tompkins "during the period of its operations litigated here," because of the preferential dispatching practices of Local 501 under its exclusive hiring-hall agreement, a remedy which was used by the Board in United Association of Journey- .:men & Apprentices of Plumbing and Pipefitting Industry of the United States and -Canada, Local 231, AFL-CIO (more briefly known as the Brown-Olds case), 115 NLRB 594. Even if applicable to the situation here, I do not believe that Joint Council 37 would properly be embraceable in such an order. But I do not agree that it is applicable here at all. In the Brown-Olds case, the illegal contract was =a closed-shop contract which was illegal on its face and was, to the extent of Brown-Olds employees, at least, if not others, enforced by the union. The contract before us does contain certain provisions apparently requiring membership as an immediate condition of employment not permissible under the Act, as has previ- ously been found, but it is not shown that these provisions were enforced. The union-shop provision, which was enforced, is conceded by counsel for the General Counsel to be lawful. Furthermore, the agreement reached at the prejob confer- ence by which the former Atkinson drivers were to be taken over by Jones-Tomp- kins is likewise conceded to be legal. As to such employees, certainly, a Brown- Olds remedy would not be appropriate. Except for those employees, who were already members of Local 501 when Jones-Tompkins began its operations, the only ones shown to have joined or applied for membership in Local 501 before the dispatch were, at the time of application for job assignment, already members of sister locals to which they had been paying dues. They were not required by Local 501 to affiliate until the 31-day period provided for if the contract had expired. Some did transfer their membership to Local 501 before that period had expired, but there is no reason to infer that they were required to. Some trans- ^ Kindler testified that a man named Lloyd Hastings had been dispatched to Jones- Tompkins as a Mack driver on March 15, 1957. Payne testified that he had never seen Hastings operate a Mack truck on that job, implying that he had been dispatched as a Euclid operator. As Hastings was employed for 12 or 13 days before Payne was employed as a Mack driver on March 28, Hastings could meanwhile have driven a Mack truck and then been transferred to a Euclid. But even if he had been dispatched as a Euclid driver, it does not appear that lie had not been listed as waiting for work longer than Payne. SNELLSTROM LUMBER CO. 535 ferred their membership to Local 501 before being dispatched to a job. As to these, the evidence does not exclude possible reasons for transfer other than belief that it was necessary in order to receive favored treatment . For all that appears, they may have transferred their membership because they had an intention of making Vancouver, Washington, or environs, their permanent residence . It cannot be said that, except to the extent required by the lawful union-shop provision, any employee of Jones-Tompkins was actually coerced into becoming a member of Local 501 . True, Lowery was told he would have to reinstate himself in order to get a job, but he was never an employee of Jones-Tompkins and he never joined or paid dues to Local 501 which could be ordered repaid . I conclude, therefore, that this is not a case in _ which dues should be ordered repaid. CONCLUSIONS OF LAW 1. AGC and members thereof, including Jones-Tompkins , are employers within the meaning of Section 2(2) of the Act. 2. Members of AGC, including Jones-Tompkins, are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. Joint Council 37 and Local 501 are labor organizations within the meaning of Section 2(5) of the Act. 4. By maintaining terms in their collective-bargaining agreement with AGC which require nonmembers of Local 501 to wear union buttons and which attach conditions to hire or tenure of employment of employees of members of AGC other than those which are authorized in Section 8(a)(3) of the Act, the Respond- ents have restrained and coerced employees in the exercise of the rights guaran- teed in Section 7 of the Act and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. By maintaining certain terms in their agreement with AGC which require members of AGC to employ members of Local 501 or other affiliated locals, the Respondents have attempted to, and are attempting to, cause such employers to discriminate in regard to hire and tenure of employment of their employees in violation of Section 8(a)(3) of the Act, and the Respondents by such conduct have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b)(2) of the Act. 6. By utilizing its exclusive hiring hall to cause employers to give preference in hiring to its members over members of sister locals and nonmembers , Respondent Local 501 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) and (2) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(16) and (7) of the Act. 8. The Respondents have not, in violation of Section 8(b)(2) of the Act, caused or attempted to cause Jones-Tompkins to discriminate against Warren Payne in violation of Section 8(a)(3) of the Act and have not, in violation of Section 8 (b) (1) (A) of the Act, restrained or coerced said Payne thereby. [Recommendations omitted from publication.] Snellstrom Lumber Co. and Donald R. Hedlind. Case No. 36- December 18, 1958 DECISION AND ORDER On April 14, 1958, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 122 NLRB No. 55.