Local 610,United Brotherhood of Carpenters, etc.

476 DECISIONS OF NATIONAL >LAB'OR' RELATIOI' ' BOARD Local 610,:.: United '.-Brotheihood of Carpeiiters' and Joiners of America, AFL-CIO and V G. Cameron;, d/b/a !Cameron Store _.:Fixtures. ..Case No..39-CB-2..6a D'ecem'ber 18, 1958' - DECISION AND ORDER On August 12, 1958, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union had engaged in and was engaging in certain unfair 'labor practices in violation ' of Section 8(b) (.1),(A) . and 8 (b) (2) of the, Act and recommending that it cease and desist there- from 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. Pursuant to the provisions of 'Section. 3 (b) of the National Labor Relations Act, the Board has delegated its,.powers in connection with this case .to a three-member panel. [Chairman Leedom and Members Bean and Jenkins], 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and -recom- mendations- of . the Trial Examiner, with the following modifications. We. agree with the. Trial Examiner 'that the Respondent Union violated Section 8 (b) (1) (A.) ,and, 8 (.b) (2) of -the Act. We find that the violations occurred on April 10, 1958, when' Sharpe, the Respo'nd= ent's representative,, told Purcell; 'who was acting on behalf of Cameron, the Charging Party, that if Cameron's employees returned to 'their store fixture installation work at the' Mulkey store, the Respondent would use a picket line and it would' not surrender with- out a "battle" its determination to have its own'members perform this work.. Respondent thereby caused Cameron to discriminate against Garcia in,th'e course of his employment.l The Respondent' contends, that,employee Garcia did not suffer any financial loss as a result of its cpnduct and, therefore, it cannot be found that the Respondent caused. discrimination against him. The Trial-Examiner. found, and we agree, that Garcia did in fact suffer 1 As no exceptions were filed , we do not pass upon the Trial Examiner 's discussion with respect to the possible applicability of the Board 's decision in Northern California Gha'ter, AGO, et al.,'.119 NLRB' 1026, to the events which occurred herein on April 3, 1958 , or upon his,fallure to, find , an 8(b)' ( 2).violationby the Respondent on the basis of the Northern California case. The Trial Examiner also found' that ' the' Respondent 'Union did not violate ' Section 8(b)(2) of the Act with respect to Joe Straube on the ground that he is a supervisor. As no exception was filed, we adopt; the -Trial Examiner's finding, pro -forma. 122'NI;RB N6.'73. LOCAL 610:, UNITED•BROTHERHQQD, OF, CARPENTERS;: ETC. 477 a'material discrimination in, his employment.- Contrary to. any im- plication in the Intermediate • Report, however, proof- ,of ,. financial loss by .a discriminates is not necessary, to, establish a• violation of Section 8(b) (2);, (if the Act.? ,With respect to: Garcia,.;we agree. with the Trial Examiner that the Respondent' should make him whole for any. loss of . pay he may have suffered, as a result of the Respondent's discrimination.against him. Any actual financial loss suffered • by Garcia can, be I determined. at, the compliance stage of this proceeding. ORDER Upon the entire record in the case, and pursuant to Section 10.(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 610, United Brotherhood, of Carpenters and Joiners of America, AFL- CIO, Port Arthur, Texas, its officers, representatives, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting. to. cause V. G. Cameron, d/b/a Cameron Store' Fixtures, his officers, agents, successors, or assigns to discriminate against or refuse to employ employees because they are not members of Local 610, United Brotherhood of Carpenters and. Joiners of America, AFL-CIO, or in any other manner to discriminate against employees in violation of Section 8(a) (3) of the Act. (b) In any like or other manner, restraining or coercing employees of the said Cameron in the exercise of their rights guaranteed. in Section 7 of the Act, except to the extent that such rights may be affected -by an agreement, requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the. following affirmative action, which the Board finds will effectuate the policies of the Act : . (a) Notify Casimiro Garcia and Cameron, in writing, that it has no objection to the employment of Cameron's employees, if, as, and when the said Cameron may have work within the. territorial juris- diction of the Respondent Union. (b) Make Casimiro Garcia whole for any loss of pay he may have suffered by reason of the discrimination against him, in the -manner set forth in "the Remedy" section of the Intermediate Report. (c) Post at its business. offices and meeting halls, including the town of Groves, Texas, and all other places where notices to mem- bers, of Respondent Union are customarily posted,, copies of, the a See Valetta Trucking Company, 116 NLRB 842, 853-854. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice attached to the Intermediate Report, marked "Appendix."a Copies of said notice, to be furnished by the Regional Director for the ! Sixteenth Region, shall, after being duly signed by the repre- sentative of the Respondent Union, be posted immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to the members are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Additional copies of the above notice shall be signed by a representative of the Respondent Union and forthwith returned to the Regional Director for the Sixteenth Region. These notices shall be posted, Cameron willing, in places where notices to Cameron's employees are customarily posted. (e) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent Union caused or attempted to cause Cameron to discriminate against Joe Straube. 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order ." In the event that this Order is enforced by the 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." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by V. G. Cameron, an individual doing business under the name Cameron Store Fixtures , herein also called . the' Company, the General Coun- sel for the National Labor Relations Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), on June 19, 1958, issued a complaint against the Respondent above-named, alleging that it had engaged and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and 8(b)(1)(A), and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and a notice of hearing thereon were duly served upon the parties. The Respondent filed an answer denying that it had committed the alleged unfair labor practices. Pursuant to notice , a hearing was held in Beaumont , Texas, on July 9, 1958, be- fore Thomas A. Ricci, the duly designated Trial Examiner. All parties were rep- resented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues. A motion made by the General Counsel at the close of the hearing to ,conform the pleadings to the proof was granted. Pursuant to leave granted the parties, the General Counsel filed a brief with the Trial Examiner on August 4, 1958. Upon the entire record in the case , and from my observation of the demeanor ,of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Jurisdiction in this proceeding is founded upon the effect of the Respondent's :alleged unfair labor practices upon the business activities of the Charging Party, LOCAL 610, UNITED BROTHERHOOD OF CARPENTERS, ETC. 479 Cameron Store Fixtures . V. G. Cameron, sole owner of that Company, for sev- eral years has been doing business under that trade name by virtue of the laws of the State of Texas. He has his principal office and place of business in San Antonio, Texas, where he is engaged in the manufacture , sale, and installation of store "•fixtliresA and related;- products: During the 12-month period ending June 30, 1958, Cameron performed contracts; including the sale of fixtures and services for their installation, outside the State of Texas totaling more than $64,000. I find that Cameron Store Fixtures is engaged in interstate commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. It. THE LABOR ORGANIZATION INVOLVED Local 610, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A: The facts Upon completion of the General Counsel' s case-in-chief, the Resopdent moved for dismissal of the complaint on the record as made ; it introduced no evidence. Thus, apart from a few minor matters discussed below, there is no dispute con- cerning the events and incidents involved. Accordingly, upon the uncontradicted and entirely credible evidence received, I make the following findings of fact. This entire proceeding arose because Local 610 of the AFL-CIO Carpenters, the Respondent here, was determined that certain employees of Cameron not perform work at a certain drugstore in the town of Groves, Texas. Local 610 believed that that work was primarily carpentry work and should be performed only by carpen- ters who were members of Local 610. It engaged in certain conduct aimed at com- pelling Cameron to remove his employees from such work and to assign it instead to its members. Mulkey and Stark, apparently as partners, own a drugstore in Groves, hereinafter referred to as the. Mulkey Drugstore. In April 1958, after extensive tornado dam- age, comprehensive restoration work was going on there. Mulkey and Stark had engaged the services of a company designated on the record only as McKesson and Robbins; McKesson and Robbins acted as general contractor and undertook to furnish all the work required together with necessary materials. In turn, McKesson and Robbins engaged the services of Cameron as a subcontractor to furnish and install the store fixtures. Cameron's office and plant are located in San Antonio, Texas. Following a Labor Board certification in November 1957, its employees have been represented by the IUE; they are covered by a _ collective-bargaining agreement between Cameron and that union. A regular part of Cameron 's business is to send some of his em- ployees to customer locations where they install the fixtures that are sold. On April 3, .1958, Joe Straube and Casimiro Garcia, employees of Cameron, were so at work in the Mulkey Drugstore. During the day Straube and Garcia were ap- proached by a person who identified himself as a representative of Local 610 and asked to see the "boss"' union card. Straube, who was the leadman, showed his IUE membership card. The self-styled Local 510 representative then said that his Union did not recognize the IUE cards. Shortly thereafter, Sharpe, business repre- sentative of the Respondent Local, telephoned Mulkey and told him that unless the employees on the fixtures were quickly removed from the premises a picket line would be established in front of the drugstore. Mulkey, apparently in charge of the store, immediately requested Straube and Garcia to gather their tools and leave the premises -the latter two complied. Neither of them ever thereafter resumed work in that drugstore. Mulkey then communicated, with a McKesson and Robbins representative, who telephoned Cameron personally. The next day Cameron arrived in Groves to- gether with his attorney, McGown. They attempted to persuade Mulkey to permit Cameron's employees to complete the installation of the fixtures. Mulkey remained adamant and, in fear of the possible effects of picketing at his drugstore, refused to permit any Cameron employees on the premises without advance assurance that Local 610 would withdraw its threat. Matters remained thus until a week- later on April 10 when, Cameron, again accompanied by McGowan, returned to Groves. They were now accompanied by Purcell, IUE International representative, and Ricks, president of the Oil Workers' local in nearby Port Arthur. The four discussed the situation and, failing again to 480 DECISIONS;OF, NATIONAL ;LABOR RELATIONS BOARD dissuade. Mulkey from his resolve, decided that Purcell and Ricks should commu- nicate with representatives .of. Local. 610, on behalf of Cameron in an attempt to effectuate: some., settlement. !,Purcell-land ;Ricks visited the Groves Labor Temple where they. met Sharpe. and one Cook, president of the Trades Council in -Port Arthur. . As, ;authorized by Cameron, Purcell first offered that Cameron.. would pay' his employees' the going rates for carpenters ,in that area,,which Local 610 had established for its members. Sharpe. rejected this offer. Purcell then, suggested . that the. dispute. be submitted to the. ".National AFL-CIO.. ;Dispute Committee." : Again Sharpe refused. During thus conversation, Sharpe said to Purcell that the work in question, ",was traditionally. their [Local 610] work"; that if IUE members were put on the job "they [Local 610] would protest it with all -their power"; that they-would use.a picket line, and that if.Local 610 surrendered its position, it would be "after the battle." ,'-Purcell- and 'Ricks reported back to Cameron, discussed further possibilities, and met with Sharpe later the same day in Beaumont. Again Sharpe stated his position as "it wouldn't make any difference ,to. him if Mr.. Cameron paid these people a hundred dollars an hour; it was still ' the carpentets' work, and they intended to perform it." In each of these meetings Sharpe. took the position that at best he would permit only one of Cameron's men to remain at the store as a supervisor while the work was being done:' 'Cameron yielded to Sharpe's demands and agreed that all the work. should be performed. by carpenters of Local 610. The, job was resumed on the afternoon of April 10, a Thursday, with only local carpenter 'employees working; they worked overtime each, day,' including Saturday, until completion of the contract the fol lowing Tuesday, April 15. Straube remained on the' premises instructing them as to where and how to install the fixtures; he did no manual work with tools whatever In'defense the-Respondent contends primarily that (1) the record does not affirma- tively establish the responsibility of Local 610': for whatever work 'stoppage occurred and '(2) in no event can it be found that the Respondent caused Cameron-the Employer-to' discriminate against employees. - This latter contention goes both to the sufficiency of the evidence and to the construction of Section 8(b)(2) of the Act. B. Conclusions ' I find, upon, the entire record, that Local 610, through its business representative, Sharpe, was responsible for the fact that Straube and Garcia were not permitted to do the work at the Mulkey Pharmacy which their Employer had assigned to, them and wished them to perform. When Purcell, of.the IUE; approached Sharpe with Cameron's various proposals to satisfy the latter's demands, he was the direct emissary of 'Cameron himself. Clearly the message he, conveyed to Sharpe was' that Cameron wished. to have Straube and Garcia, resume their work., Equally clear is, the answer Sharpe made to Purcell as a response to Cameron:_ that Local 610 would ; in no event discontinue the threats it made, and that the determination of, Local 610 was. to prevent Cameron's employees from working. At no time dur- ing the two conversations which Purcell and Ricks had with Sharpe and Cook-did' Sharpe deny, either that he made the original, threat of ,picketing to Mulkey, or that the continuing purpose of Local 610 was to bring about the removal of the two employees in question from their jobs in Groves.,, All this of course was more than a mere request. The two spokesmen for Local 610 instead said that they "would protest it with all their power,". that they would "picket" the drug= store,, and that if they did give up it, would only be "after the battle." In support of its first contention that the evidence of responsibility. by ' the Re- spondent is weak, the Respondent relies heavily upon the fact that Mulkey, who testified that Sharpe made the original picket line threat to him over the telephone, had-never met Sharpe personally and therefore was unable .to identify his voice over the telephone. However, component parts of coherent evidence are not to be considered piece by piece, in isolation from the remainder of the related evi- dence.,.and the record as a whole. If the proof of. Local. 610 responsibility were limited solely to these telephone conversations, in which the voice of the speaker was not directly identified, the Respondent's -argument oil this point would have much, merit: However, in the circumstances of this. case, Mulkey's failure to iden- • 'In testifying concerning his conferences with Purcell , Cameron ' recalled additional settlement suggestions which he believed Purcell had also , offered Sharpe . As Cameron did not ' speak with Sharpe , and as it is clear that Sharpe rejected all the proposals made to.him, the 'apparent discrepancies between Purcell 's and Cameron's. recollection of their conversations are of • no moment. , LOCAL_ 6,10, UNITED•BRO,THERHOOD,.OF:CARPENTERS,,,ETC. 481 tify Sharpe's voice of his own knowledge does not render his testimony concerning. Sharpe's statement inadmissible.? Three times before these events , the "Carpenters Local" [the,local .number was. not identified ,in ;the record] had, put pressure , on Cameron not to use, his own em- ployees to' install fixtures-twice in Houston and once , in Pasadena. : Purcell twice. prevailed . upon , "this company" to drop similar charges against . the "Carpenters Local.", The person ..who telephoned Mulkey identified himself as representative of 'Local 610; revealed a familiarity ,with the type of work going on in the drugstore, and indicated that he knew that Straube and Garcia had. been asked for union cards. Most significant is the fact that during the two ; conferences between Cam- eron's emissaries and, Sharpe, during each of which the subject matter of what had occurred at the Mulkey Drugstore was clear and unquestioned ,. Sharpe never once disclaimed responsibility for what had occurred on April 3. Instead his con- sistent contentions in rejecting . every suggested proposal, and his repeated threats of the precise kind that had been made to Mulkey over the telephone , only served, to reaffirm the original telephone threat to picket the drugstore . And finally, the very fact that the ultimate solution was to have the work done by members of Local 610, with every Cameron employee excluded from any of the work, makes Mulkey's testimony about the original telephone threat very significant. In view of the logical coherence of all of the testimony and the consistent pattern of the unfolding events as an overall picture , I find that Sharpe did telephone Mulkey and threatened to picket the drugstore.3 As to the Respondent's second principal argument, it, too, must fall because of the direct testimony , uncontradicted and completely credible, that Sharpe was speaking to Cameron himself through Purcell when he again threatened picketing and "battle" in the event Cameron should attempt to use members of the IUE at the, Mulkey Drugstore . In view of this direct evidence , it is clear and I find that the Respondent caused Cameron , the immediate Employer, to discriminate against Straube and Garcia in the course of their employment . I would make the same finding even assuming that all evidence respecting Mulkey's telephone conversa- tions with Sharpe were entirely excluded. As on its first point, the Respondent is attempting here to separate , the chain of events into component parts and to isolate one from another . If all that had been proved were the events of April 3, there might be some merit in the Respondent's. argument that Local 610 did not cause the "employer" to discriminate against any employees ; that it only caused a neutral-Mulkey-to act. The Respondent's argu- ment, restated, is that only a direct employer can discriminate against employees within the meaning of Section 8(a)(3) of the Act, and that therefore a union violates Section 8(b)(2) only when it causes an employer to engage in such discrimination.4 As stated above; Mulkey dealt only with McKesson and Robbins , the general contractor, who, was responsible for the entire work at the drugstore . In turn, 0 20 American Jurisprudence, Evidence, Section 368. It is not, however , necessary to the admission of evidence of a telephone conversa- tion'that the identity of the person with whom the conversation was held be proved by recognition of his voice . Such person ' s identity may be established by the cur- rounding circumstances as well - as by his voice. See, also, Andrews v. U.S., 78 F. 2d 274 (C.A. 10) : " Recognition of the voice is not necessary to, such identity. Like any other ordinary fact, it may be established by direct evidence or by circumstances ." Accord : U.S. v. Fleming, 134 F. 2d 776 ; Gutowsky v. Halliburtoiii Oil Well Cementing Co., Okla., 287 P. 2d 204. s International Brotherhood of Electrical Workers Local 35 v. Commission on Civil Rights, 102 A. 2d 366: A sufficient foundation is laid when the subject matter of the conversation , evidence of its occurrence , and prior and subsequent conduct of the parties fairly establish the identity of the person with whom . the 'conversation occurred. See, also, Texas Candy and Nut Co. v. Horton, 235 S.W. '2d 518. 4In pertinent part, Section 8(b) (2) `of the statute reads : ' It shall be an unfair labor practice for a labor organization or its agents ... to cause or attempt to cause an employer to discriminate against an employee in vio- lation of Subsection 8(a) (3) . Section 8 (a) (3) reads: It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. 505395-59-vol, 122-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKesson and Robbins had a subcontract with Cameron who was to furnish fix- tures and his own employees. There is no evidence in this record respecting the terms of the agreement between McKesson and Robbins or of the contractual rela- tionship between the latter and Cameron. And it is true that as of April 3, at least, ^ Cameron did 'not' remove the"employees from the drugstore.- Irfdi ed; "he' attempted the next day to prevail upon Mulkey to relent and, the latter admittedly having no employer-employee relationship with the workmen, remain adamant. On this question of whether or not unlawful discrimination as defined in Section 8(a)(3) can be committed only by the direct employer-and consequently 8(b)(2) violated by the union which causes it-the Board first considered the problem in the Austin case.5 In finding a violation of Section 8(a)(3) there, the Board con- sidered pertinent certain authority which the direct employer had conferred upon the Austin Company over the retention of employees who worked at the premises of Austin but were not directly employed by that company. In a number of later decisions the Board reiterated its view that an employer does not violate the statute when it excludes the employees of other employers from work unless there exists an "intimate relationship" between the two employers, or unless the accused com- pany is contractually or otherwise•°vested• with- :some'Fmeasure of,control `over-°the terms of employment of the employees affected. On this ground the Board dis- missed a series of complaints against respondent unions charged with having caused other companies' workmen to lose employment .6 The most recent statement of Board law on this question appears in Northern California Chapter, The Associated General Contractors, et al., 119 NLRB 1026, where a general contractor removed the employees of a subcontractor from a con- struction project on the demand of a union of which they were not members. The Board, by majority holding, found in that case that the inherent relationship be- tween the general contractor and the subcontractor sufficed to support a holding that the general contractor discriminated against such employees within the mean- ing of Section 8(a)(3) and that the union violated Section 8(b)(2) by causing such discrimination. Although a minority of the Board expressed their opinion that such conduct by "any" employer, without regard to that particular employer's rela- tionshipto" :the. direct -employer,. could.,also, constitute an unfair labor practice, the case did not require such a decision and the opinion of the Board in its entirety does not establish the proposition as a matter of law. Had Local 610 in this case caused McKesson and Robbins to remove the em- ployees of Cameron from the drugstore, this case might be governed, with respect to the April 3 incident, by the Board holding in the Northern California case. Mulkey, however, was not the general contractor and therefore stood once again removed from the employees. His relationship with Straube and Garcia thus being twice removed from their employer, a holding that Local 610 violated Section 8(b)(2) on April 3 would require a further extension of the construction of that section' than the Board majority was willing.to make in its last pronouncement on the subject. I deem it unnecessary to answer this last question in this case . As stated above, the events in sequence cannot be isolated one from the other. The picture as a whole affirmatively shows that the Respondent Local in fact caused Cameron, the direct employer, to engage in the discrimination. The logical pattern of events warrants the conclusion that the Respondent Local took its first step through Mulkey merely because such procedure appeared to it as the most effective preliminary in its program of coercion. In this light, and considering the clear relevancy of the events of April 10, even the causation of Mulkey on April 3 appears as a form of pressure upon Cameron, as ultimately intended by the Respondent. A final defense by the Respondent, aimed at the entire complaint, is based on the assertion that neither Straube nor Garcia ever suffered any financial loss in consequence of the Respondent's conduct, and that therefore ,it.;.cannot be found that the Respondent caused 'discrimination against them in.their employment. The record does show that both these employees were paid in full for their regularly scheduled hours of work on April 3 when, before their usual quitting time, they ceased work. They were also paid in full by Cameron for the April 4 workday, 5 Austin Company, 101 NLRB 1257. 9 The Great Atlantic t Pacific Tea Company, 116 NLRB 943; United Association of Journeymen, etc. (Carrier Corporation), 112 NLRB 1385; and Los Angeles Building and Construction Trades Council, AFL (Standard Oil), 105 NLRB 868. LOCAL 610, UNITED BROTHERHOOD OF CARPENTERS, ETC. 483 when they performed no work. Thereafter both of them were assigned to other work either at the home plant or elsewhere. Indeed, Purcell, the IUE representa- tive who looked after the interests of these employees, admitted that he was not overly concerned about the events so long as both employees worked at all times or,were paid for any period of enforced idleness. The record also shows, however, that the out-of-town assignments on which. both Straube and Garcia were frequently put, brought to them incidental employment benefits which employment at the home plant did not afford. They were paid regular time for periods spent traveling to and from distant locations. Frequently installation jobs require considerable overtime hours, often including weekend work. Also, while in travel status or while working at locations away from home, they enjoyed the benefits of expense accounts, which were a source of additional money to them. In fact, completion of the Mulkey Drugstore itself illustrates the type of additional employee benefits which these employees enjoyed over and above the regular pay received during the period immediately following April 3. In view of this uncontradicted evidence, I find that both Straube and Garcia did in fact suffer a material discrimination in their employment. Entirely apart from the foregoing considerations, the evidence shows. that StraVbe, was a supervisor. He was"referred to as a leadman on the Mulkey Drugstore job. Cameron testified that Straube was the "supervisor" on the job, that he has au- thority to hire additional employees for installation work and has in fact done so, and that "when I send him out on an installation job, he takes full charge, sees that the job goes on right, and what men are with him, he instructs them." Straube testified that he has been doing installation work for 3 years, that such assignments occur in spells-"sometimes twice in a month or less," that there are from two to four or five men on each job, that he is usually in charge of such work, and that he recalled two instances when he personally hired additional employees at the loca- tion. His hourly rate was $2.10 while Garcia earned $1.55 per hour. Straube also signed the original charge in this case as agent for Cameron, and designated himself there as "superintendent." The record also shows that when working at the home plant of the Company Straube is not a supervisor. On these facts, I find that Straube at all :material times,was a supervisor.within,the, meaning,,gf ithe;.statutgry..defiz}ititln . of the term.? The Board has long held that a union violates Section 8(b)(2) of the Act only where the conduct which it causes or attempts to cause the employer to engage in itself constitutes a violation of Section 8(a)(3).8 The Board has also ruled that the statute as now written denies to supervisory employees the protection of Section 8(a)(3), and dismissed complaints, against both union and employer, where the union caused the employer to discriminate against persons holding or seeking super- visory positions.9 Accordingly, as Straube was a supervisor I shall recommend dis- missal of the complaint as to him. Of the entire record I find that the Respondent, in violation,of Section 8(b)(2) and 8(b)(1)(A) of.the Act, caused Cameron to discriminate against Casimiro Garcia in the course of his employment. 7 Section 2(11) of the Act reads as follows: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, re- ward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or affectively to recommend such action, if in connection with the fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 8International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc. (Timkin-Detroit Axle Co.), 92 NLRB 968: . . . the Union's liability for a violation of Section 8(b) (2) In causing the discharge of [an employee] regdires' a' determination that the Company, were it before us, would have been found to have violated Section 8(a) (3) by such discharge. e Pacific American Shipowners Association, et al., 98 NLRB 582, at page 596: We are of the opinion that, when Congress amended the Act to exclude supervisors from the definition of the term "employee," it thereby denied to those seeking and to those holding supervisory jobs the protection of Section 8(a)(3). Cf. Better Monkey Grip Company, 115 NLRB 1170, and cases there cited. 484 , DECISIONS OF NATIONAL, LABOR RELATIONS BOARD IV. THE EFFECT OF. THE UNFAm .LABOR_PRACTICES UPON COMMERCE The activities of the Respondent set: forth above, occurring in connection with the operation of the Company described in section. I, above, have a close, intimate, and substantial relation to trade, traffic,, and :commerce' among the several States and ; tend to lead to labor disputes burdening and obstructing `commerce and the free flow of. commerce. V. THE, REMEDY Having' found that Rdspondent'has'engaged in unfair labor practices, I shall rec- ommend that it be ordered to cease and desist therefrom, and to take certain affirmative ''action designed'to effectuate the policies" of the Act. I have found that the Respondent caused the-Company to discriminate against Garcia in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act. I shall therefore recommend that the Respondent be ordered'to make Garcia whole for any loss of pay he may have suffered as a result of the discrimination against -him by payment to him 'of a sum of money equal to the-amount he would normally have earned absent the discrimination, less his net earnings during the period of the discrimination: Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS, OF LAW 1. Local 610,' United Brotherhood of Carpenters and Joiners of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By.causing Cameron to discriminate against his employees in violation of Section, 8(a)(3)' of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 3. By causing Cameron to discriminate as aforesaid, thus restraining and coerc- ing employees and prospective employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The. aforesaid unfair labor practices .are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 610, UNITED BROTHERHOOD OF CARPENTERS. AND' JOINERS 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 Re- lations Act, as amended, we hereby notify you that: WE WILL NOT in any manner cause or attempt to cause V. G. Cameron, d/b/a Cameron Store Fixtures, to discharge or to deny employment to- any em- ployee because they are not members of the undersigned labor organization, or to discriminate against his employees in any other manner in regard to their hire or tenure of employment, except ' to the extent permitted, by Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of V. G. Cameron, d/b/a Cameron Store Fixtures, in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL make whole Casimiro Garcia for any loss of pay he may have suffered.as a result of the discrimination against him. LOCAL 610, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 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.