Local Union No. 450, Int'l Union of Operating Engrs.

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS HEREBY ORDERED that the Petitioner's request to withdraw the petition be, and it hereby is, granted with prejudice to its filing a new petition for a period of 6 months from the date of this Order, unless good cause is shown why the Board should entertain a new petition filed prior to the expiration of such period. Local Union No. 450, International Union of Operating Engi- neers, AFL-CIO, and W. S. Chennault, business representative [Tellepsen Construction Company] and J. R. Rittenberry, Charging Party. Case No. 39-CB-120. December 19, 1958 DECISION AND ORDER On December 19, 1956, Trial Examiner Harry S. Sahm issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondents filed exceptions to the Intermediate Report and a sup- porting brief.' 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 is the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the exceptions, modifica- tions, and additions noted below. 1. We agree with the Trial Examiner that the Respondents, in violation of Section 8(b) (2) of the Act, caused the Company dis- criminatorily to deny employee Rittenberry a promotion to master mechanic because he was not a member in its organization for 3 years. As shown in the Intermediate Report and the record, the Re- spondent Union and the Company were parties to a contract which required that .the master mechanic be a "practical mechanic of the craft . . . and have three (3) years or more of experience at . . . [his] trade." In April 1955, Farmer, the Company's superintendent, told employee Rittenberry that he might surprise him and make him a master mechanic. Rittenberry, who had joined the Respondent Union 2 years earlier, had experience in the trade dating back to I As the record, exceptions, and brief adequately present the issues and positions of the parties, the Respondents' request for oral argument is denied. 3 Because of their disagreement with the Trial Examiner's findings and recommenda- tions, the Respondents charge the Trial Examiner with bias and prejudice . We find no evidence in the record of bias or prejudice or merit in this contention. 122 NLRB No. 78. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 565 1927. Following this conversation, Farmer telephoned the Respond- ent Union's business agent, the Respondent Chennault, and notified him of the contemplated promotion of Rittenberry. Although Chennault originally indicated in this conversation his satisfaction with this appointment, he later telephoned Farmer and told him that Rittenberry's union book or card showed that he lacked the 3 years' experience as required by the contract. Thereafter, Farmer, with Chennault's approval, selected Cannard as master mechanic. The Respondents contend that the denial of the promotion to Rittenberry was the voluntary act of the Company; that the Union's approval was not necessary; and that all Business Agent Chennault did was to point out that Rittenberry lacked the 3 years' required experience. We find no merit in these contentions. Significantly, the Respondents do not, nor could they validly, argue that Ritten- berry actually did not possess this experience. As indicated above, Rittenberry's experience in the trade began in 1927. Moreover, the Respondents were fully aware of this fact for, when Rittenberry joined the Union 2 years earlier he had given them this information. It is thus clear that the Respondents' opposition to Rittenberry's promotion stemmed not from inadequate experience but from the fact that he had not been a member of the Union for 3 years. That the Respondents caused this discrimination is also clear. Concededly, the Respondents purported to act pursuant to the terms of the contract which prescribed the qualifications of the master mechanic. As it was the Respondents' opposition to Rittenberry's promotion for reasons related to union membership which prevented Rittenberry from obtaining a promotion he otherwise would have secured, the Respondents thereby caused the Company to discriminate against him within the meaning of Section 8(b) (2) of the Act.3 We further find that, by such conduct, the Respondents restrained and coerced employees in the exercise of their rights in violation of Section 8(b) (1) (A) of the Act. 2. The Trial Examiner also found that, although the contractual provision recognizing the Respondent Union as a source for securing operating engineers was lawful,4 the Respondent Union, in practice, maintained an exclusive hiring hall for the Company, which was operated in an unlawful manner by giving preference in employment to union members in good standing. He therefore found that the s Radio Officers' Union etc. v. N.L.R.B., 347 U.S. 17; ef. N.L.R.B. v. International Union of Operating Engineers etc. (Sub Grade Engineering Co.), 216 F. 2d 161, 164 (C.A. 8), enfg. 93 NLRB 406; N.L.R.B. v. Bell Aircraft Corporation, 206 F. 2d 235 (C.A. 2), enfg. 101 NLRB 132. 4 The General Counsel concedes the validity of the contract clause which provides that the Company- recognize [s] the Union as a source of such skilled manpower and will, therefore, use it as a source when in need of employees . The Union agrees that when Contractors request employees, it will exert every effort to supply skilled men. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents thereby violated Section 8(b) (2) of the Act. The Respondents deny the existence of an exclusive hiring-hall arrange- ment and, in any event, insist that the referral system was operated on a nondiscriminatory basis. For the reasons hereinafter stated, we agree with the Trial Examiner's unfair labor practice findings and find no merit in the Respondents' contentions. As shown in the intermediate Report and the record, it was the function of the master mechanic, a supervisory employee, to recruit engineers for the Company when the Company requested him to do so. To secure the needed engineers, the master mechanic utilized exclusively the Respondent Union's hiring hall. The master me- chanic, whose selection was required by the terms of the contract between the Respondent Union and the Company when a specified number of engineers was employed, was a union member. As indicated previously, such appointment was subject to the Union's approval. As a member of the Respondent Union, the master mechanic was obligated to abide by the International Union's con- stitution, which provided that "each shall hire none but those in good standing with a union having jurisdiction over the work to be done ....75 It thus follows that the master mechanic served in a dual capacity- as agent of the Company in recruiting engineers and as agent of the Respondent Union bound to enforce its constitutional hiring restrictions. In such circumstances, we find that the Company and the Respondent Union, in effect, agreed through the master mechanic as their agent to operate under a closed-shop arrangement which the Act plainly prohibits.- The discriminatory nature of the hiring arrangement between the Respondent Union and the Company is further revealed by other evidence in the case. Thus, the only persons referred by the Union were union members. In addition, Business Agent Chennault testi- fied that the Union's out-of-work list was maintained solely for union members. Moreover, as discussed in the Intermediate Report, and later in this decision, the Union made Rittenberry's good stand- ing in its organization a condition of employment when it refused to place Rittenberry's name on the Union's out-of-work list because 5Art. XXIII, subdivision 3, Section (a). Although a union's constitution and bylaws may be used as evidence of an unfair labor practice , the Trial Examiner is in error in indicating that the constitutional provision itself was illegal. Joliet Contractors Asso- ciation v. N.L.R.B., 202 F. 2d 606, 608-609, 612 (C.A. 7), enfg. as mod. 99 NLRB 1391, 1394, cert. denied 346 U.S. 824. e Enterprise Industrial Piping Company, 117 NLRB 995 ; Booth and Flinn Company, 120 NLRB 545. In finding that master mechanics were agents of the Union , we do not rely, as did the Trial Examiner in part, on the fact that there was "some indication " that when there was no steward on the job the responsibility of enforcing the Union's rules devolved upon the master mechanics . The Trial Examiner did not permit the General Counsel to adduce such evidence. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS . 567 of his failure to picket or pay the $22.50 fine or assessment, and when Master Mechanic Cannard, as the Respondent Union's agent, refused, pursuant to the Union's instructions, to ask for Rittenberry's referral until he straightened out his picketing difficulties with the Union. Finally, the Union threatened Rittenberry with expulsion and the consequent loss of employment if he did not withdraw his charges filed herein. This also indicated that membership in good standing in the Union was a condition of employment.? In the recent Mountain Pacific case," the Board held that an ex- clusive hiring-hall agreement between an employer and a labor organization is permissible if certain safeguards against discrimina- tion are provided. It is obvious that not only were such safeguards not provided here but the hiring hall was actually operated for benefit of union members in good standing. Accordingly, we find that, by maintaining an exclusive hiring-hall arrangement with the Company, which gave preference in employment to union members in good standing, the Respondents violated Sec- tion 8(b) (2) and (1) (A) of the Act. 3. We agree with the Trial Examiner that the Respondents vio- lated Section 8(b) (2) and (1) (A) of the Act by causing the Company to discriminate against Rittenberry in violation of Sec- tion 8(a) (3). We find, as did the Trial Examiner, that the Re- spondents refused to place Rittenberry on the out-of-work list and to return him to his prestrike job when work became available because of his failure to perform picket-line duty or pay the $22.50 fine or assessment imposed upon him. As Rittenberry could not be reemployed without the Respondent Union's clearance, we find that the delay in his reemployment was the direct result of the operation of the discriminatory hiring system.° Moreover, separate and apart from the existence of a discriminatory hiring arrangement, the Re- spondent Union caused the Company to discriminate against Ritten- 7 In finding an illegal hiring-hall arrangement, we, unlike the Trial Examiner, do not rely on the written statements given by Company Superintendents Farmer and Looper. The County Electric case, 116 NLRB 1080, cited by the Trial Examiner, is inapplicable, as it deals with admissions of "responsible representatives" of respondent parties in a proceeding. The Company in the present case is not a respondent party. 8 Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883. Such agreement or arrangement must provide 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, including the safeguards that we deem essen- tial to the legality of an exclusive hiring agreement. See also Joe K. Miller, d/b/a K.M. & M. Construction Co., 120 NLRB 1062. 8 N.L.P.B. v. Local 369, International Hod Carriers', etc. (A. C. Frommeyer Co.), 240 F. 2'd 539, 544 (C.A. 3), enfg. as mod. 114 NLRB 872. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD berry by reason of Master Mechanic Cannard's refusal to hire him until he straightened out his picket-line difficulties with the Re- spondent Union. The record shows that Rittenberry had spoken to Cannard on two occasions about returning to work and that the Union had instructed Cannard not to request Rittenberry until he had adjusted his picket-line difficulties with the Union. In so doing, Cannard was acting as the Respondent Union's agent, not only as a result of these instructions, but also as a union member bound by the Union's constitution to hire only union members in good standing.10 We therefore find that the Union was responsible for Cannard's conduct in imposing a discriminatory condition of employ- ment in contravention of the prohibition in the Act. The Respondents contend, however, that no violation could be found because no jobs were available at the time Rittenberry re- quested referral or applied for his prestrike job. We find no merit in this contention. It is well settled that discrimination may be in- ferred where it is clear that the existence of a discriminatory hiring practice and the union's attitude toward the applicant would make .reapplication futile when a job did open up.11 This is precisely the situation in the present case. 4. We also agree with the Trial Examiner's finding that the Re- spondents, in violation of Section 8(b) (1) (A) of the Act, threatened Rittenberry with loss of employment if he did not withdraw the charges he had previously filed with the Board. The Respondents' exceptions to the Trial Examiner's finding are based primarily on their disagreement with the Trial Examiner's credibility findings. We perceive no reason to disturb these findings.12 5. Finally, the Respondents contend, in substance, that the unfair labor practices alleged in the complaint are not supported by a charge, as required by Section 10(b) of the Act. We do not agree with this contention. The charge filed herein alleges that the Respondents, in violation of Section 8(b) (1) (A) and (2) of the Act, caused the Company to "terminate the employment of Rittenberry" and that the Respondents restrained and coerced employees of the Company in the exercise of the rights guaranteeed in Section 7 of the Act. In our opinion, these allegations are sufficiently related to, and broad enough to encompass, the allegations of the complaint. Accordingly, as the unlawful conduct alleged in the complaint occurred within 6 months prior to the filing and service of the charge herein, we find that Section 10(b) does not bar the complaint. 10 United Brotherhood of Carpenters and Joiners of America, Local #517 (Gil Wyner Construction Company), 112 NLRB 714, 716, enfd. 230 F. 2d 256 (C.A. 1). n N.L.R.B. v. Local 369, International Hod Carriers', etc., supra, at p. 544. 12 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3) ; cf. N.L.R.B. v. Universal Camera Corporation, 190 F. 2d 429 (C.A. 2), on remand from Universal Camera Corp. v. N.L.R.B., 340 U.S. 474. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 569 THE REMEDY To remedy the unfair labor practices herein, we shall adopt the Trial Examiner's recommendations except as modified herein. We have found that the Respondents have operated an unlawful exclusive hiring hall pursuant to an arrangement. with the Com- pany. We shall therefore order them to cease and desist from entering into, maintaining, or giving effect to such arrangement, agreement, or understanding with the Company or any other em- ployer over whom the Board will assert jurisdiction, which does not provide for the safeguards prescribed in the Board's decision in Mountain Pacific and which is not enforced in a nondiscriminatory manner.13 We have also found that, under the hiring-hall arrangement be- tween the Respondent Union and the Company, membership in good standing was unlawfully imposed as a condition for securing and retaining employment with the Company, thereby inevitably co- ercing employees not only to become members in good standing in the Respondent. Union but also to pay the Respondent Union initiation fees, dues, and other sums. The payment of such moneys thus constituted the price employees had to pay for their jobs in disregard of their statutory rights. In order to expunge the coercive effects of such illegal exactions, we find it necessary and appropriate in effectuating the policies of the Act to direct the Respondent Union to refund the moneys so collected from the Company's employees.14 Otherwise, the Respondent Union would be permitted to enjoy the fruits of its own unfair labor practices. However, in conformity with Section 10(b) of the Act, the Re- spondent Union's liability shall be limited to moneys collected during the period beginning 6 months before the filing and service on it of the charge herein. The evidence of the Respondents' unlawful conduct herein per- suades us that there is a reasonable likelihood that the Respondents will engage in similar unfair labor practices with respect to em- ployees of other employers unless they are enjoined. Moreover, Board records disclose that the Respondents have committed other violations of the Act.15 In addition, as found above, the Respond- 13 Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883. 14 Cf. United Association of Journeymen & Apprentices of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594; Harold Hibbard and Ben R. Stein d/b/a Hibbard Dowel Co., 113 NLRB 28; N.L.R.B. v. Broderick Wood Products Co., et at., 261 F. 2d 548 (C.A. 10). Contrary to the implication in the Intermediate Report, we find that the requirement of membership in good standing as a condition of employment establishes that the Respondent Union coerced employees into paying these moneys. Moreover, we find that the power to direct the refund herein is an incident of the Board's general authority to order such affirmative action to remedy an unfair labor practice as will effectuate the policies of the Act. Ibid. 15 See, for example, Local 450, International Union of Operating Engineers, AFL-CIO (Construction Employers etc. and Tampco Piping, Inc.), 120 NLRB 568; Local 450, International Union of Operating Engineers, AFL-CIO (W. J. Hedrick and H. W. Marschall, Jr., d/b/a Industrial Painters and Sand Blasters), 117 NLRB 1301. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents have caused the Company unlawfully to discriminate against Rittenberry. Therefore, to effectuate the policies of the Act, we shall order the Respondents to cease and desist from causing other employers over whom the Board will assert jurisdiction to dis- criminate against their employees or applicants for employment, and from in any other manner restraining or coercing employees in the exercise of their statutory rights. 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 Union No. 450, International Union of Operating Engineers, AFL- CIO, its officers, representatives, agents, successors, and assigns, and the Respondent, W. S. Chennault, its business representative, shall: 1. Cease and desist from : (a) Entering into, performing, maintaining, or otherwise giving effect to any agreement, arrangement, or understanding with Tel- lepsen Construction Company, or any other employer over whom the Board will assert jurisdiction, which conditions the hiring of applicants for employment, or the retention of employees in their jobs, with such employer upon clearance or approval by the said Respondents, or which conditions employment upon membership in the Respondent Union, except as authorized by Section 8(a) (3) of the Act. (b) Causing or attempting to cause Tellepsen Construction Com- pany, or any other employer over whom the Board will assert jurisdiction, to discriminate against J. R. Rittenberry, or any other employee or applicant for employment, in violation of Section 8(a) (3) of the Act, (c) Threatening J. R. Rittenberry or any other employee with loss of employment if he refuses to withdraw any unfair labor practice charge filed by him with the National Labor Relations Board. (d) In any other manner restraining or coercing employees 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 re- quiring membership in a labor organization as a condition of em- ployment 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) Make whole J. R. Rittenberry for any loss of earnings he may have suffered because of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 571 (b) Refund to all present and former employees of Tellepsen Construction Company any initiation fees, dues, or other moneys they were illegally required to pay the Respondent Union in order to secure or retain employment with the said Company under the illegal hiring arrangement between the Respondent Union and the Company during the period beginning 6 months before the filing and service upon the Respondent Union of the charge in this proceeding. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all records, reports, out-of- work lists, and other documents necessary to analyze the amounts of moneys due and the rights of employment under the terms of this Order. (d) Post in the Respondent Union's business offices and meeting halls copies of the notice attached hereto marked "Appendix."'s Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an authorized representative of the Respondent Union and by the Respondent Chennault, be posted by the said Respondents immediately upon receipt thereof, and be maintained by them for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that the said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for the Sixteenth Region signed copies of the notice attached hereto as an appendix for posting at the offices of Tellepsen Construction Company and project sites where the said Company is engaged in business within the territorial jurisdiction of the Respondent Union, in places where notices to the Company's employees are customarily posted, if the said Company is willing to do so. (f) Notify the Regional Director in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. 19 In the event that this Order Is enforced by a decree of a United States Court of Appeals, there shall be substituted for the wards "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 450, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO; TO ALL EMPLOYEES OF TELLEPSEN CONSTRUCTION COMPANY; AND TO ALL APPLICANTS 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 given notice that : 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT enter into, perform, maintain, or otherwise give effect to any agreement, arrangement, or understanding with Tellepsen Construction Company, or any other employer over which the National Labor Relations Board will assert juris- diction, which conditions the hiring of applicants for employ- ment, or the retention of employees in their jobs, with such employer upon clearance or approval by us, or which conditions employment upon membership in our organization, except as authorized by Section 8(a) (3) of the Act. WE WILL NOT cause or attempt to cause Tellepsen Construction Company, or any other employer over which the Board will assert jurisdiction, to discriminate against J. R. Rittenberry, or any other employee or applicant for employment, in violation of Section 8(a) (3) of the Act. WE WILL NOT threaten J. R. Rittenberry or any other employee with loss of employment if he refuses to withdraw any unfair labor practice charge filed by him with the National Labor Relations Board. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent to which 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 J. R. Rittenberry whole for any loss of pay suffered as a result of the discrimination against him. WE WILL refund to all employees of Tellepsen Construction Company any initiation fees, dues, or other moneys they were illegally required to pay in order to secure or retain employment with the said Company under the illegal hiring arrangement between our Union and the said Company during the period beginning 6 months before the filing and service upon us of the unfair labor practice charge in this proceeding. LOCAL UNION No. 450, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) W. C. CHENNAULT, Business Agent. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 573 INTERMEDIATE REPORT BACKGROUND J. R. Rittenberry, the Charging Party herein , went to work for the Tellepsen Con- struction Company on March 3, 1953, operating a welding machine. Shortly before going to work, Rittenberry joined the Respondent Union which had a collective- bargaining agreement with the Houston Chapter of Associated General Contractors of America, Inc., of which Tellepsen Construction Company is a member. This agreement, relevant provisions of which are attached hereto as Appendix B, pro- vided, inter alia, that the Company would use the Union as a manpower source to supply it with construction employees. The General Counsel claims that sometime in April 1955 , the Company sought to make Rittenberry a master mechanic, a supervisory position,' but that the Union refused to agree to his promotion for proscribed reasons. The Union defends its action by pointing out that inasmuch as its agreement with the Company provided that master mechanics must have at least 3 years ' experience at their trade, and Rittenberry did not, he was ineligible for the promotion . The General Counsel counters this defense by alleging that this 3 years' experience provision was interpreted by the Union to mean that an employee must have been a member of the Union for 3 years before he could be eligible to become a master mechanic , and since it is undenied that Rittenberry had such experience the Union's refusal to agree to his promotion under these circumstances was a violation of the Act. On July 20, 1955 , at a time when the Charging Party, Rittenberry , was on his vacation, the Union went on strike. The strike lasted until Sunday, August 14, 1955. The following day, Rittenberry went to the union hall and was told by the union officials that because he had not walked the picket line during the strike his name would be placed at the bottom of the out-of-work list. The Union denies this, claim- ing that Rittenberry did not return to work because there was no job for him when the strike ended and that one did not become available until March 20, 1956, when he returned to work. The General Counsel also alleges that shortly before the hearing commenced in this proceeding union officials threatened Rittenberry with expulsion from the Union which is the equivalent of loss of his job, if he did not change or withdraw his then pending charge which he had filed with the Board . The Union denies this accusation. 1. FINDINGS OF FACT It is conceded and found that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. It is conceded also that the Tellepsen Construction Company, herein referred to interchangeably as Tellepsen and the Company, is engaged in general construction . It has a contract with the Dow Chemical Company under which it performs maintenance , repair, and construction work as an independent contractor for the Dow Chemical Company at its plants A and B, located at Velasco and Freeport, Tex. respectively.' Tellepsen also performs services in the State of Louisiana for Esso Standard Oil Company, and for Gulf Interstate Company, a natural gas transmission company. Tellepsen in the course and conduct of its business during the 12-month period from April 1955 to April 1956, which period is representative of all times material hereto, performed services for Dow Chemical Company at its plants A and B in excess of $1,000,000. In addition, Tellepsen performed services outside the State of Texas for Esso Standard Oil Company in excess of $50,000, and also performed services for Gulf Interstate Company in excess of $50,000, both of which are located in the State of Louisiana. Dow Chemical Company ships chemical products valued in excess of $1,000,000 annually to points outside the State of Texas; Esso Standard Oil Company ships petroleum products in excess of $200 ,000 annually to points outside the State of 1 The General Counsel contends and Respondent denies that the master mechanics were ,supervisors. It is found, upon the basis of the entire record, that they are supervisors within the meaning of Section 2(11) of the Act. See section 15 of the agreement between the Union and Company (Appendix B). In addition, as discussed in later sections of this report, master mechanics have powers which are supervisory and disciplinary in nature. They hire and discharge the men working under their supervision, have charge of the maintenance and repair of equipment, and instruct the men under their supervision. Inasmuch as they are invested with authority to give orders, master mechanics are a part of the supervisory system, even if, in some instances, the orders they give are not initiated by them. 2 Plant A is located 8 miles from plant B. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louisiana; and Gulf Interstate Company furnishes natural gas in excess of $200,000 annually to points outside the State of Louisiana. It is found, therefore, that the Tellepsen Construction Company is engaged in commerce within the meaning of the National Labor Relations Act3 and it is subject to the jurisdiction of the National Labor Relations Board. THE TESTIMONY J. R. Rittenberry, the Charging Party, has had extensive experience as an operating engineer dating back to 1927.4 In February 1953, he applied for a job to A. V. Looper, construction superintendent of Tellepsen's plant B project. Rittenberry testified that Looper, who is related to Rittenberry's wife, told him that the Respondent Union, which had a collective-bargaining agreement with the Company, would not permit anyone to work for the Company who was not a member of the Union. Consequently Looper made arrangements whereby Rittenberry appeared before the Union's examining board to determine his qualifications . The board inquired about his experience and other related matters with respect to the operation, maintenance , and repair of mechanical equipment . At that time he also paid half of his union initiation fee of $83. Shortly afterwards , the union examining board notified him by mail that he had passed the examination and was entitled to mem- bership in the Union. Shortly after Rittenberry received this notice, he met W. C. Chennault on March 3, 1953, at the union hall. Chennault at that time was a master mechanic for Tellepsen at its plant A project.5 Chennault took him to the project at the Dow Chemical Company, with whom Tellepsen had a construction and maintenance contract, where he was finger-printed and filled out various employment forms preparatory to being placed on the Tellepsen payroll. Chennault then assigned Rittenberry to operating a welding machine under his supervision.6 About April 11, 1955, Rittenberry was transferred to plant B from what is referred to as the Glycerol project? On or about April 18, 1955, while he was at the plant B maintenance job, which, at that time, did not have a master mechanic to supervise it, R. J. Farmer, Superintendent of the Tellepsen Construction Company's plants A and B projects, informed Rittenberry that he had intended to promote Rittenberry to master mechanic at the plant B project, but that when he took steps to bring about the promotion, he was told by Chennault, the Union's business agent, that Rittenberry had not been a union member for 3 years, and for this reason he was ineligible for promotion.8 Shortly after this, V. A. Cannard, who had been a union member for over 3 years , was made master mechanic at the plant B project. In the early part of July, Rittenberry received permission from his master mechanic, Cannard, to take a 2 weeks' vacation , commencing on July 16, and ending on August 1, 1955. On July 20, the Union went on strike against the Houston Chapter of the Associated General Contractors , a multiemployer bargaining unit, of which Tellepsen was a member.9 Rittenberry returned to his home from his vacation in the late e 61 Stat. 136, as amended, herein called the Act. I From 1927 to 1940 he operated bulldozers , water pumps, air compressors, dump trucks, jackhammers, wagon drills , well-drilling machines, steam shovels , and drum hoists. During the 5 years (1940-45 ) he was in the Army, he attended a heavy equip- ment school, testing equipment, and, upon going overseas, was made a motor sergeant. As such he operated , maintained, and repaired all types of heavy equipment. Upon his discharge from the Army in November 1945, he was employed as an automobile mechanic. From 1947 until he went to work for Tellepsen , he drove, maintained, and repaired buses for a school district. c Chennault left Tellepsen's employ later and took a position on July 14 , 1953, as business agent for the Respondent Union at its Freeport , Tex., office. He testified that as business agent his duties included the maintenance and management of the Union's out-of-work list, whereby job applicants were dispatched to employers. 8 Subsequently, Rittenberry operated a motor crane , air compressors , water pumps, bull- dozers, winch truck , and at one time he uncrated and assembled four diesel welding machines. During this time he also maintained and repaired various mechanical equipment. 7 When Rittenberry first went to work, he was operating a winch truck at plant A. Three or four months later, he was transferred to plant B ; later to plant A , and then to the Glycerol project. 8 See General Counsel's Exhibit No . 5 and Looper's testimony on redirect examination. 9 Tellepsen was not picketed but the premises of two other members of the Houston Chapter of Associated General Contractors were. However, those union members em- ployed by Tellepsen did not work during the strike. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 575 afternoon of July 29 at which time Looper, the Company's construction superin- tendent, brought him a check for money owed him by the Company for services rendered prior to his going on vacation. Rittenberry learned for the first time from Looper that the Union had gone on strike on July 20. From July 29, when Ritten- berry returned from his vacation, until August 14 when the strike ended, no one from the Union requested him to walk the picket line. On Sunday, August 13, Rittenberry telephoned his master mechanic, Cannard, at his home and learned that the strike was settled. Cannard told him to report to the union hall the following morning which Rittenberry did. At the union hall, Rittenberry spoke to Chennault and Kenneth Cook (a picket captain) about returning to work, and according to Rittenberry they told him that he had no job because he had not walked the picket line during the strike and that his name would be placed at the bottom of the Union's list which it maintained for the members who were out of work and seeking employment. Rittenberry remonstrated with them explaining that he was on his vacation during the strike and that, regard- less of the strike, he was still in the employ of Tellepsen and that he therefore saw no necessity for having to place his name on the out-of-work list. Chennault and Cook explained to Rittenberry that at a recent union meeting, which Rittenberry did not attend, a resolution had been passed by the membership that if any member did not do his allocable share of picketing during the strike he would be fined $7.50 for each time he missed doing picket duty. Rittenberry was advised by them that since he had missed three tours of picket duty he owed the Union $22.50. Moreover, explained Chennault, it would do him no good to report for work at the project site as be could not work unless he had a job referral slip from the Union.1° When he asked Chennault and Cook whether he would be able to return to his job if he paid the $22.50, they told him that even if he paid the fine, his name would still be placed at the bottom of the out-of-work list and as employees were requested, he would have to wait his turn until his name got to the top of the list. Shortly after the above incident, Rittenberry testified he telephoned V. A. Can- nard, his master mechanic, at his home," to inquire about his job status and was informed by Cannard that until such time as Rittenberry straightened out his picket- line difficulties with the Union the Union would not permit him to request his services.12 On or about November 22, 1955, Rittenberry again called Cannard and asked him if the winch truck which Rittenberry had been operating immediately before the strike was working and Cannard informed him that it was being used at plant A.13 Rittenberry also asked Looper the same question and Looper confirmed what Cannard had told him. About the beginning of March 1956, A. V. Looper, Tellepsen's construction superintendent, had a conversation with Chennault, the Union's business agent, in the course of which he asked Chennault if he had any objection to Rittenberry's returning to work. Chennault replied that he did not. Upon being told by Looper that Chennault had no objection, Rittenberry went to the union hall and requested Chennault to place his name on the out-of-work list which he did. On March 19 Looper telephoned Chennault and asked him if he would send Rittenberry back to work. The following day Chennault notified Rittenberry to report to work for the Company. On May 13, 1956, approximately 3 weeks after the complaint in this proceeding had been served on the Respondent Union, Earl E. Ford, business representative for the Respondent Union, came to Rittenberry's home. According to Rittenberry's testimony, Ford asked Rittenberry to accompany Homer C. Pierce, Respondent's business manager, to the office of the Union's attorney ". . . where I could ... change my statement, reword my statement ... and drop the charges.... Well, [Ford] said it would eventually lead to they would take my [union] book away from me and I wouldn't be able to go to work nowhere, and throw all, everybody else out of work, and the Union would be busted up and they would fine me.... I don't know exactly 10 Rittenberry testified that shortly after this conversation with Chennault he asked Farmer, Tellepsen's superintendent, if his "job was still open" and he told him it was. U Cannard, who is a member of Respondent Union, returned to work less than a week after the strike had terminated. 12 Looper, construction superintendent, testified that Cannard told him that Rittenberry would have to straighten out his difficulties with the Union with respect to his failure to walk a picket line before he would be eligible to return to work. 13 Cannard testified that Rittenberry inquired from him about his job status at the time the strike ended ; a few days later Rittenberry again spoke to him about coming back to work and a third time a few months later. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all there was said, but anyway the whole intention for me was to come and change my charges and drop the charges." Rittenberry testified that about a week later Ford telephoned him at his home on May 19 and asked him what he had decided to do and that he replied , "1 had done made my statement and I couldn't get in dutch with Uncle Sam by giving another statement." On May 24 Harvey Frazier, a master mechanic at Tellepsen 's plant A project, and a union member, invited Rittenberry to his home that evening. When he arrived at Frazier's home, Homer Pierce, business manager of the Respondent Union, was also there . According to Rittenberry, Pierce asked him to drop the charges he had filed with the Board against the Respondent Union and if he would not agree to do so, his union book would be taken from him thus preventing him from con- tinuing to work for the Company. The following day Looper, Tellepsen's construction superintendent , came to where Rittenberry was working on the project site, and told him to telephone Chennault. When he spoke to him , Chennault asked and Rittenberry agreed to meet at the union attorney's office in Houston on the following day. He came to the attorney's office on Saturday , May 26, which was 2 days before the hearing in this proceeding commenced . Also present were Chennault and Frazier . Rittenberry's testimony continues as follows: I believe [the Union's attorney] asked me that he wanted to talk to me about this, and he didn't know all of the particulars about it, and I think I asked him before we got started , I told him that we wanted to have one thing straight, that it was going to be short and I was on the receiving end, I wasn't giving out no information of any kind that-unless my lawyer was sitting here beside of me, and he said, well, that was kind of impossible to reach him at Forth Worth or get him here from Fort Worth, something like that and he did ask me 2 or 3 questions , and I refused to answer the questions.... I got up and he asked me would I mind stepping outside while he talked to Mr. Chennault and Mr. Frazier behind closed doors. Turning to a consideration of the Respondent Union 's testimony, the record shows that all its witnesses categorically denied that they asked Rittenberry to withdraw the charge he filed with the Board or asked him to change , for the benefit of the Union, a statement previously given by him to the Board or that he was threatened with loss of future benefits by union officials. Earl E. Ford , business agent for the Union, denied that he ever asked Rittenberry to withdraw the charges or to change the statement he had given to the Board nor did he threaten him in any way whatsoever with loss of employment rights. On cross-examination , Ford testified as follows: Q. What persuasion did you attempt to use on Mr. Rittenberry to induce him to withdraw the charges he had filed against Local 450? A. Well, I explained to Mr. Rittenberry that the charges that he had filed against the Local Union would not only disrupt the Local Union but would affect many people that belonged to it, gets the people all tore up and everything else.... Well, it costs them money for all this hearing , everything else, it costs everybody money, costs the Local Union money to hold the hearing cases, costs all the business agents , everybody else that's representatives that's involved in it their loss of time and everything else. Q. What was your purpose in asking Mr. Rittenberry to go to Brock's office? A. The purpose was to have him tell Mr. Brock his side of the story and he also indicated that he would-he had the idea of wanting to drop the charges but he didn't know how to go about it. He indicated that to me. * * * * * * He indicated to me by telling me that he didn't know how to go about dropping the charges and I recommended that if he wanted to drop the charges I would take him to Houston to Mr . Brock's office , he could tell Mr. Brock his side of the story, and they could work it out whatever he wanted to do about with- drawine it. I didn't know personally how he could withdraw it. Q. Did he ask you what assurance or protection you could give him if he would withdraw the charge? . A. Yes Sir. . . . I assured him that there would be no action taken against him at any time. Homer C. Pierce, business manager for Respondent Local 450, an elective official, who appoints all the Respondent Union's business agents, denied that he ever asked LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 577 Rittenberry to withdraw his charge or. change any statement he had given to the Board or threatened him with loss of future employment. He testified that when he spoke with Rittenberry at Frazier's home on the evening of May 24, he told Ritten- berry he "would like for him to come to Houston and talk to Mr. Brock and at least be fair enough to give our attorney a statement of facts. And at no time did I ask Mr. Rittenberry to change his statement in any form or anyhing that he might have said to anybody in the past." W. H. Frazier, master mechanic at plant A and a union member, testified that it was he who invited both Pierce and Rittenberry to his home. When he was asked on cross-examination what "prompted" him in doing so, he testified: Well, I don't truthfully say that I can truthfully answer you, but I felt like he didn't realize what he was doing. . . . because I wanted to see if he couldn't drop this matter. I didn't think he realized what he was doing. . . I asked Rittenberry to drop them charges because I thought I was doing the man a favor. Frazier's testimony on cross-examination continues as follows: Q. Now, what was your purpose in telling Mr. Rittenberry that the union men might object to working with him if he didn't drop those charges? A. Well, I think anybody with common sense knows that a union man is not going to work with a man not carrying a card. Q. I understood in answer to my question a minute ago that [you testified] anyone knew that there wouldn't be any union men working alongside a man not carrying a card or a nonunion man, but evidently you are saying that you didn't say that. A. I said there is a possibility that you would run into complications. On September 1, 1955, a little over 2 weeks after the strike had ended which eventuated in Rittenberry not returning to work, he filed his charge with the Board. On April 24, 1956, the complaint issued and alleged that the Union caused Ritten- berry's employer, Tellepsen Construction Company: (1) to refuse to promote Rittenberry to master mechanic in May '1955, be- cause he was not a member of the Union for three years; (2) the Union caused the Company to refuse employment to Rittenberry from August 15, 1955, the date the strike ended, until March 20, 1956, because: (a) Rittenberry did not picket during the strike nor pay the fine assessed against him by the Union because of his failure to picket; (b) the Union operated an illegal closed shop hiring arrangement whereby the Company could hire only those who had referrals from the Union and the Union refused to refer Rittenberry. Respondent Union filed its answer on April 27, 1956, denying the commission of any unfair labor practices. The hearing commenced at Houston, Tex., on May 28, 1956, before Henry S. Sahm, the duly designated Trial Examiner. At the hearing the General Counsel moved to amend the complaint by adding an allegation that shortly before the hearing commenced, the Union threatened Rittenberry, the Charging Party, with loss of future employment rights if he did not withdraw the charge he had filed with the Board and/or change an affidavit he had previously given to a Board investigator. The Respondent Union's counsel pleaded surprise and moved for a continuance in order to prepare to meet the allegations in the amend- ment. In view of the grave accusations alleged in the amendment and in order to accord Respondent's counsel adequate time in which to prepare his defense, the hearing was adjourned on May 30, reconvened on July 10, and concluded on July 11. All parties were represented by counsel14 and were afforded full opportunity to participate in the hearing, to introduce relevant evidence, and to argue orally. The motion of the Respondent to dismiss the case at the end of the General Counsel's case-in-chief was denied. Ruling was reserved on the Respondent Union's renewal of its motion at the conclusion of its case-in-chief and it is hereby ruled upon in accordance with the findings and conclusions made herein. Briefs were filed by both the General Counsel and the Respondent's counsel which thoroughly analyzed the facts and cited cases alleged to be dispositive of the issues in this proceeding. 14 W. C. Chennault, business agent of the Union, appeared on his own behalf. 505395-59-vol. 122-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contentions of the Parties as to the Alleged Closed Shop The relevant portions of the collective -bargaining agreement entered into between the Respondent Union and the Association, of which Tellepsen is a member, discloses no patent illegality with respect to the contract itself.15 The General Counsel con- cedes this but contends that the written contract has been supplemented by unwritten practices and oral agreements which have resulted in closed-shop conditions whereby a prospective employee must first obtain membership in the Union before he can be hired by the Company. The General Counsel claims that the Union's illegal closed-shop hiring-hall arrangement operated in the following manner: The master mechanics who are supervisors and union members are hired by the Company but not before obtaining clearance from the Union. After the master mechanic is hired, the Company informs him of the number and categories of operating engineers the detail will require.16 He, in turn, contacts the union hiring ha1117 and requests that these men be sent to the project site. The Union, claims the General Counsel, then fills the request by selecting men from its out-of-work list which contains only the names of union members. The Respondent contends, however, that there was no underlying agreement or practice for the Tellepsen Construction Company to recruit its employees exclusively through the Union. It claims that the testimony fails to prove discrimination against nonunion applicants for employment. On the contrary, the Union urges it proved affirmatively that its out-of-work list was maintained for union as well as nonunion job applicants. Moreover, argues the Union, the Company did not vest sole authority to hire in the master mechanics nor was there any understanding, agree- ment, or practice requiring Tellepsen to clear the employment of all master mechanics with the Union. Resolutions of Credibility It is readily apparent, therefore, that the General Counsel and Respondent's counsel are diametrically opposed in their respective versions as to the manner in which the Union operated its hiring hall. Nevertheless, after observing the wit- nesses and analyzing the record and the inferences to be drawn therefrom, these conflicting contentions are resolved for the reasons hereinafter explicated, in favor of the version advanced by the General Counsel.18 Rittenberry, the Charging Party, appeared to be a sincere and truthful witness. This impression became a conviction when his testimony was found to be both consistent with the attendant circumstances in this case and not appreciably shaken by able counsel for the Respondent who vigorously and thoroughly cross-examined him. On the other hand, the demeanor of Chennault, Pierce, and Cannard, while on the witness stand, and their disposition to fence with the General Counsel, together with their vague, inconvincing, and in some instances evasive and incredible testi- mony, which frequently contradicted themselves and one another, compels the trier of these facts to discredit their testimony, insofar as inconsistent with the findings made herein. Farmer, superintendent of Tellepsen Construction Company, was so reluctant to state frankly any matter adverse to the Union's interest that at times this charac- teristic approached not only evasion but incoherence. This disinclination of Farmer to testify adversely to the Union's interests was probably due to a painful awareness that he must avoid precipitating a cleavage between the Company and the Union. He was in the dilemma of knowing that he would have to continue to deal with the Union in the future and that his company was almost entirely dependent upon the Union for its labor supply. These subjective considerations, which the cold record fails to capture, are not stated to justify Farmer's questionable conduct or his witness-stand deportment, but solely to attempt to explain that part of his in- 15 One agreement ( General Counsel's Exhibit No. 2) was in effect from July 1, 1954, to July 1, 1955, and was extended on August 14, 1955, to April 30, 1958 (General Counsel's Exhibit No. 3). 16 For the types of job categories encompassed by the term "operating engineer," see General Counsel's Exhibit No. 3, beginning at page 9. 17 A hiring hall is a location from which a union fills requests for workers under a rotary hiring system. Under this system , when a worker is unemployed , he registers at the union hiring hall where the registrants are listed in order of date of registration. When an employer advises the union of vacancies , the union normally selects men from the top of the register and refers them to the employer. 28 Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, at 494 to 496. LOCAL UNION NO. 450, INT' L UNION OF OPERATING ENGRS. 579 credible testimony where he professed not being aware of these closed-shop condi- tions. It is believed that as superintendent, he must not only have known of these illegal hiring arrangements but he must have also acquiesced in them in order for them to have become operative. Another consideration for finding that the Union's hiring hall was operated under a closed-shop arrangement is the fact that although the Union denied this, the denials were voiced by witnesses in response to leading and suggestive questions propounded by Respondent's counsel. By reason of the leading and suggestive character of the questions, less weight has been given to these witnesses' testimony than ordinarily would be given to their answers to such questions. Before leaving the matter of credibility, it might be well to consider what probative value should be given to the witnesses' affidavits in resolving the issues in this pro- ceeding. A field examiner of the Board investigating this case prior to the hearing obtained voluntary sworn statements which were executed by Superintendent Farmer and A. V. Looper, construction superintendent of the Company.19 No objection was made to their reception in evidence. Both Farmer and Looper testified at the hearing, were cross-examined by the Union, and neither of them repudiated their sworn state- ments. Both of them testified that their affidavits were true to the best of their knowl- edge. Farmer, at the hearing, made certain explanations of immaterial and minor inaccuracies in his statement which did not impugn the substantive allegations in his affidavit. Both Farmer and Looper testified that they read the statements and initialed each page before they were signed. In County Electric Co., Inc., 116 NLRB 1080, the Board credited testimony of witnesses which was not inconsistent with the statements contained in affidavits they gave to a field examiner of the Board. In that case, the statements were those of "responsible representatives" of a party to the proceeding. In the instant proceeding, however, Looper and Farmer are supervisory officials of Tellepsen Construction Company which is not a party, but which the record shows was in part delicto with the Respondent Union 20 To hold that the Company's non- joiner, for reasons which the record fails to disclose, should be a distinguishing circumstance which renders the rule enunciated in the County Electric case, supra, inapplicable, is a distinction without a difference and ascribes greater importance to assumed technical and procedural difficulties which have neither practical reality nor legal substance. No sound reason is evident for differentiating under the unique circumstances in this case between affidavits given by parties and nonparties, particularly where the party not joined is equally responsible with the Respondent inasmuch as it was in privity with and acquiesced in this illegal hiring-hall arrange- ment. To not give substantive validity to the allegations in Farmer's and Looper's sworn statements insofar as they are not inconsistent with and support other inde- pendent evidence introduced by the General Counsel, would be disregardful of the facts in this case in that the illegal hiring-hall arrangement was necessarily con- sensual so that the company officials were as intimately acquainted with the facts pertaining to it as the Union. If Farmer and Looper, officials of Tellepsen, were competent witnesses to testify as to the manner in which the hiring hall was oper- ated with respect to job applicants referred to Tellepsen by the Union, no reason is logically apparent why the sworn statements they gave prior to the hearing as to these same circumstances were not of probative value insofar as being corrobo- rative of one version of the facts in issue, particularly where Farmer's consent was necessary to effectuate this hiring arrangement in order for it to be operative. Moreover, these statements were given at a time when the occurrences related therein were more fresh in the minds of these witnesses than when they testified at the hearing. Therefore, reliance has been placed upon statements made in Farmer's and Looper's affidavits insofar as they are corroborated by other inde- pendent evidence in the case that an illegal hiring-hall arrangement existed be- tween the Union and the Company 21 Ultimate Findings and Conclusions 1. The alleged discriminatory hiring-hall arrangements Based upon the entire record and the credibility resolutions made above, it is found that the Respondent's hiring hall operated in the following manner. The master mechanics who have hiring duties and were all union members and who supervised the operating engineers working under them were required to have the Union's impri- 19 General Counsel's Exhibits Nos. 5, 6, and 7. 29 H. M. Newman, 85 NLRB 725, footnote 15. 2 See 2 Corpus Juris Secundum, page 987, and Mita v. Bonham, 25 F. 2d 11 (C.A. 9). 580 , DECISIONS. OF NATIONAL LABOR RELATIONS BOARD matur before the Company could hire them.22 The master mechanic, in turn, hired the operating engineers.23 The company superintendent would enumerate to the master mechanic the number and categories of operating engineers and allied classifi- cations required to staff the detail. The master mechanic would then contact the Union's hiring hall and relay to the Union's business agent the number of men re- quired, specifying the qualifications required of each man. After the master mechanic had made his request to the Union, the business agent would select the men whose names were highest on the out-of-work list and qualified for the particular jobs. The Union's business agent would then give these men referral, slips and dispatch them to the job site where their services were required.24 As no job applicant except a union member could obtain a job-referral slip, it was. necessary for him to join the Union before his name could be placed on the out-of- work list. In order to get on the out-of-work list, an applicant would have to appear first before the Union's examining board. At the time he presented himself for this oral examination, he paid one-half the Union's initiation fee. Shortly thereafter, the Union notified the applicant whether he had passed the examination. If he was. successful in his examination, he was admitted to union membership and his name placed at the bottom of the out-of-work list. Upon being referred by the Union, the job applicant presented himself at Tellepsen's: personnel office at plant A or B where he showed his job referral slip to the Com- pany's timekeeper.25 This referral slip, which is signed by the business agent, bears, the date of the referral, the applicant's name, and a statement that he is qualified to operate specifically named construction equipment. (General Counsel's Exhibit. No. 8.) The Company's timekeeper then processed the applicant by having him° fill out certain employment forms and other prescribed formalities preparatory to placing his name on the payroll.26 He then reported to the union steward of the detail to which he had been dispatched and to whom he gave his job referral slip.27 Discussion The agreement entered into between the Company and the Union does not on its face discriminate against nonmembers. Unlike a patently illegal closed-shop contract by virtue of which employers are required to hire only such persons as are members of the contracting union, the contract between Tellepsen and the Union requires in article IV only that the Company "recognize the Union as a source when in need of employees." (See appendix B.) However, the test of the legality of a hiring-hall agreement is not necessarily determined by its patent provisions but whether in its 22 This is evidenced by Farmer's being required to obtain union approval for Ritten- berry's inchoate promotion to master mechanic. This is further confirmed by the fact that when Cannard took over the job for which Rittenberry was originally slated , Farmer first obtained Chennault's approval for the substitution of Cannard as master mechanic in place of Rittenberry. 23 The superintendent told the master mechanic what he wanted done but left the manner in which the work or result was to be accomplished to the master mechanic's judgment. 24 Although Farmer testified "men" are hired at the project site, Looper, construction superintendent, testified on redirect examination that those employees who were hired at the project site were "crafts other than engineers," and to his knowledge he had never hired an engineer at the project site. 25 Inasmuch as the allegations of the complaint are limited to the hiring arrangements which were in effect at Tellepsen's plants A and B projects , the frame of reference in which these findings are made are confined to those two projects. 25 In this regard, it is significant that Farmer testified he had never rejected a man, reporting for work at the project site who had been referred by the Union. 27 Although the record is not clear in this regard , there is some indication that where a detail does not have a union steward , the responsibility of enforcing the Union's working rules devolves upon the master mechanic who in - such situations acts In a dual capacity. However, in such situations , it appears that the dominating interests of the master mechanic lay with the Union , perhaps, because his appointment to this position required union approval . Furthermore , he had to be a union member, his oath required him to hire only union members, and both Cannard and Frazier, master mechanics , testified they abided by their union 's constitution so that it would appear, and is so found , that they also acted as -agent of their union . See Grove Shepherd Wilson & Kruge, Inc., 109^ NLRB 209, 215. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 581 -operation it results in unlawful discrimination to nonmembers of the contracting union. 28 In applying this test to the facts in this case , it is found that such discrimina- tion against nonmembers did exist, and that both the Company and the Union con- templated and understood that the Union in supplying personnel would discriminate in favor of union members who were in good standing. At the Respondent's hiring hall, jobs were assigned in rotation from the out-of- work list which was maintained exclusively for those union members who had registered as available for the jobs for which the particular applicant was qualified and over which the Union had jurisdiction.29 Consequently, the Union in the opera- tion of its hiring hall caused discrimination by not making available the registration and referral facilities available to nonmembers on the same terms and conditions as it was available to members.30 Nor is there any doubt that the Company' s practices in hiring operating engineers conformed to the insistence of the Union upon a closed shop and that such illegal practices were acquiesced in by Tellepsen. The practice of the parties thereto clearly establishes that they mutually interpreted and administered the contract as one requir- ing preferential hiring of union members. Any doubt as to this conclusion is dispelled by article XXIII, subdivision 3, section 3(a) of Respondent's constitution which provides, in part, that "Each member shall hire none but those in good standing with a union having jurisdiction over the work to be done... 31 However, argues the Respondent, even though this provision of the constitution which requires union members to hire only union members is illegal , nevertheless it was never enforced. This contention lacks merit because the Board has held that where the challenged provision involved is illegal on its face, as here, it is immaterial that the provision has never been enforced,32 or has been orally rescinded.33 More- over, it would appear that where a party seeks to show that an unlawful provision has never been enforced , it should be more closely scrutinized and a distinction made between its admissibility in an unfair labor practice proceeding and a representation proceeding .34 Furthermore , assuming that this constitutional provision of the Union was never enforced, there is no assurance it may not be enforced in the future. The mere presence of this provision in the constitution is an effective means whereby obedience by its members can be insured.35 Besides, there is evidence in the record from which it might be concluded that the Respondent did not enforce the above-cited 28 N.L.R.B. v. National Maritime Union, 175 F. 2d 686 (C.A. 2), cert. denied 338 U.S. 954, rehearing denied 339 U.S. 926. See also Grove Shepherd Wilson & Kruge, Inc., supra; International Brotherhood of Teamsters, etc., Local 182, etc. (Lane Construction Corporation), 111 NLRB 952 ; Gil Wyner Construction Company, 112 NLRB 714; N.L.R.B. v, Philadelphia Iron Works, Inc., 211 F. 2d 937 (C.A. 3) ; Eichleay Corporation v. N.L.R.R.. 206 F. 2d 799 (C.A. 3). 25 Pierce, the Respondent Union's business manager, testified "at least 98 percent of the people that work on construction work that operate equipment in the Freeport area belong to our local union." This would appear, it seems, to corroborate the finding made herein that preexisting union membership was a prerequisite to obtaining employment. :w Respondent's contention that the General Counsel failed to prove discrimination against nonunion applicants is contrary to the finding made herein. However, argumenta- tively assuming this to be so, Respondent cannot escape liability for this reason because "it was certainly reasonable to conclude that no one applied because it appeared futile to do so" in the face of the Union's known discriminatory operation of its hiring hall. Eichleay Corporation v. N.L.R.B., 206 F. 2d 799, 803 (C.A. 3). See also N.L.R.B. v. Gottfried Baking Co., Inc., 210 F. 2d 772 (C.A. 2) ; Consolidated Western Steel Corpora- tion, 108 NLRB 1041, 1044. 31 This provision is particularly significant when it is considered that all master mechanics were union members. See also article XV, section 3(h) of the constitution (appendix C,), and N.L.R.B. v. International Brotherhood of Boilermakers, 232 F. 2d 393 (C.A. 2). 32F. G. Kress Box Company, 97 NLRB 1109; Regal Shoe Company, 106 NLRB 1078. 33 Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1392-1393; Ketchum & Company, Inc., 95 NLRB 43; Flint Lumber Company, 85 NLRB 943; Reading Hardware Corporation, 85 NLRB 610, 612. 34 Metropolitan Life Insurance Company, 90 NLRB 935. See also Hawaii Teamsters and Allied Workers Union (Oakley Dahlberg et al . d/b/a Waialua Dairy), 111 NLRB 1220, 1228-1231, where it was held that parol evidence is not admissible to prove a secret contract clause as a defense to an unfair labor practice charge against a union, 35A. & M. Woodcraft, Inc., 85 NLRB 322, 323-324, 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitutional provision because it was aware of its illegality so that such an explana- tion instead of being an answer only serves to confirm its illegality.36 The Supreme Court held in Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, 53, that Section 8(b)(2) is violated if the union causes an employer to engage in conduct which would violate Section 8(a)(3). It is found, therefore, that the Respondent Union violated Section 8(b)(2) of the Act by entering into an oral arrangement with the Tellepsen Construction Company with respect to the operating engineers and allied classifications employed at its plants A and B, whereby the Com- pany had an unlawful exclusive hiring arrangement with the Union which was in- tended to and did give preferential employment to members of the Union thereby discriminating against nonmembers.37 2. The alleged failure to promote Rittenberry Sometime between the latter part of April or early part of May 1955, Farmer, superintendent of Tellepsen, told Rittenberry, the Charging Party, that he had intended to promote him from his then present position of operating engineer to the supervisory position of master mechanic but that the Union's business agent, W. C. Chennault, would not agree to it because Rittenberry had not been a member of the Union for 3 years. Section 15(G) of the collective-bargaining agreement entered into between the Respondent Union and Tellepsen provides that all master mechanics must have 3 years' or more experience at their trade. However, the Respondent Union interpreted this provision of the collective-bargaining agreement to require that the person being considered for promotion to the position of master mechanic must have been a mem- ber of the Union for at least 3 years. The Union's denial of the Company's request that Rittenberry be promoted because he was not a union member for 3 years (al- though his extensive experience was known by Chennault) is a violation of the Act since it constituted discrimination with respect to his "tenure of employment" as the prospects for promotion were among the conditions of his employment. As the Respondent Union was responsible for Chennault imposing this discriminatory con- dition on Rittenberry's promotion, it thereby caused the Tellepsen Construction Com- pany to discriminate against him in violation of Section 8(a)(3) and therefore violated Section 8(b)(2) of the Act.38 3. The alleged discrimination against Rittenberry due to his failure to picket The Union went on strike on July 2, 1955, at a time when Rittenberry was on vaca- tion. When the strike terminated, Rittenberry went to the union hiring hall on August 15 and requested Chennault to send him back to work.39 Chennault told him there was no job available for him and, furthermore, inasmuch as he had not picketed during the strike his name would be placed at the bottom of the out-of-work list 40 Moreover, said Chennault, the Union had recently passed a resolution that any mem- ber who had failed to picket would have his name placed at the bottom of the out-of- work list, and fined $7.50 for each tour of picket duty he had missed. Rittenberry 3e Homer E. Pierce, business manager of Respondent, testified on cross-examination that the Union's attorney advised him in 1952 or 1953 that "there may be a question about" the legality of certain provisions in the Union's constitution. s7 Decision was reserved at the hearing on Respondent's motion objecting to the admissibility of evidence which was offered to prove that the Union accorded referral preference to those members on its out-of-work list who were issued certain types of "work books." The motion is hereby granted as this evidence is beyond the scope of the allega- tions in the complaint and therefore not litigable. 'N.L.R.B. v. Belt Aircraft Corporation, 206 F. 2d 235 (C.A. 2). 39 Respondent's contention that Rittenberry' s name was not placed on the out-of-work list because he had not requested it, although it is undenied that he requested Chennault to send him back to work on August 15, appears to have an aura of hair-splitting and to evince an undue preoccupation with semantics which may not be employed in construing the Act. See N.L.R.B. v. Metallic Building Company, 204 F. 2d 826 (C.A. 5). Moreover, Chennault testified that there was a "thorough understanding" that those employees who were working before the strike would, upon termination of the strike, be sent back to work on the equipment they had been operating immediately before the strike. See Pacific American Shipowners Association, 98 NLRB 582, 588-589, where the Board held the discriminatees were entitled to be redispatched to their prestrike jobs even though they made no such request. no Rittenberry was the only union member who failed to walk the picket line during the strike. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 583 remonstrated with Chennault explaining that he was on his vacation and that no one from the Union contacted him on his return to request that be do picket duty. Furthermore, argued Rittenberry, there was no necessity for his name being placed on the out-of-work list because he had been employed by Tellepsen immediately prior to the strike and he therefore considered himself upon termination of the strike as still working for the Company and entitled to return to work. Chennault, however, was adamant. Rittenberry then offered to pay the fine of $22.50 (assessed on the basis of $7.50 for each of the three tours of picket duty he missed) but Chennault told him that even if he accepted the $22.50 fine, he would still have to go to the bottom of the out-of-work list.41 Subsequent to this conversation with Chennault at the union hall, Rittenberry spoke to Cannard, his master mechanic, on three occasions to ascertain what was his job status. On each occasion, Cannard told him that he had been instructed by the Union not to request Rittenberry until he had the picket line "matter straightened up with the Union." Until such time as he had, Cannard informed Rittenberry, he could not ask for him. Rittenberry also testified that shortly after the strike ended, he saw Farmer who told him that his job was still open.42 This was confirmed by Farmer who placed the incident as occurring sometime in August after the strike. Rittenberry did not return to work until March 20, 1956, when Chennault dispatched him to the Tellepsen project, when Construction Superintendent Looper interceded with Chen- nault on Rittenberry's behalf on March 19 and received union clearance. Under Section 8(a)(3) of the Act, it is an unfair labor practice for an employer "by discrimination in ... employment . . . to encourage or discourage membership in any labor organization...." By Section 8(b)(2) of the amended Act, this pro- hibition was extended to unions, which were forbidden "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3)...." Therefore, subject to a proviso permitting discharge of employees for failure to pay union dues and initiation fees pursuant to a union-security agree- ment, an employee may not be subjected to job discrimination at the hands of the union. And where, as here, there was no union-security agreement in effect, this is not encompassed within the Respondent's defense nor considered hereinafter in resolving the issues in this proceeding. The legislative history of Section 8(b) (2) shows that Congress sought to eliminate union abuses of control over employment.43 The statutory scheme clearly establishes, and its legislative history conclusively confirms, that a labor organization is divested of all control over employment for the purpose of either advancing or retarding an employee's exercise of his right to participate in or to forego union activity.44 The Supreme Court in the Radio Officers' case 45 said: The policy of the Act is to insulate employees' jobs from their organizational rights. Thus §§ 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood.... As the Supreme Court ruled in the Radio Officers' case, supra, a union may not apply its rules against its own members, so as to cause job discrimination by employ- ers. While the proviso to Section 8 (b) (1) (A) protects the union's right to prescribe its own rules with respect to the acquisition or retention of membership therein, it does not authorize the union to extend the effective scope of those rules so that they determine the right of a member to the acquisition or retention of a job.46 The Respondent argues, however, that there is no evidence that it requested the Company not to reemploy Rittenberry after the strike terminated. Assuming but 11 The Union's insistence that Rittenberry go to the bottom of the out-of-work list even if his proffer of the fine were accepted constitutes further evidence of discriminatory motive. 42 After Rittenberry filed his charge with the Board on September 1, 1955, Chennault requested Farmer to give him a letter stating that Rittenberry no longer had a job with Tellepsen . Farmer refused to give Chennault such a letter. u H. Rept. 245, 80th Cong., 1st sess., p . 34; S. Rept. 105, 80th Cong., 1st secs., pp. 6, 7, 21, and 22; H. Conf. Rept . 510, 80th Cong., 1st sess., p . 44; 93 Cong. Rec. 3837, 4135, 4191, 4193, 4432, 4886, 4887; S. Rept. 986, part 3, 80th Cong., 2d sess., p. 52. " See Union Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008 (C.A. 7), cert. denied 342 U.S. 815, 87 NLRB 779; N.L.R.B. v. Electric Auto-Lite Company, 196 F. 2d 500 (C.A. 6) enfg. 92 NLRB 1073; N.L.R.B. v. Eclipse Lumber Co., Inc., 199 F. 2d 684 (C.A. 9), enfg. 95 NLRB 464; Allied Aviation Fueling of New York, Inc., 113 NLRB 111. +sRadio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, 40, affg. 196 F. 2d 960, enfg. 93 NLRB 1523. 16N.L.R.B. v. Philadelphia Iron Works, Inc., 211 F. 2d 937, 940-941 (C.A. 3). 584 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD not deciding this to be so, the Board and the courts have held that such refusal under such circumstances nevertheless constitutes a violation of Section 8(b)(2) because the refusal to return Rittenberry to his job was the proximate result of the discrimi- natory referral and hiring arrangement. As the Respondent is responsible for the unlawful hiring arrangement, it is also responsible for its reasonably-to-be-anticipated results.47 Moreover, Master Mechanic Cannard was forbidden by the Union to request Rittenberry. Also, the Respondent argues that the General Counsel has not proved that there were jobs available to which Rittenberry could have been referred after the strike. The fallacy of this contention is that it fails to take into account that the Union's refusal to even consider Rittenberry for employment on an equal basis with the other members because of his neither walking the picket line nor paying the fine, and that the Union's refusal to place his name on the out-of-work list when the strike ended was unlawful discrimination. This denial of equal access to the available jobs was in itself and without more a restrictive imposition in violation of the Act. Under the circumstances described above, it is found that the Respondent Union prevented Rittenberry from returning to work until March 20, 1956, because he had failed to walk the picket line during the strike.48 This discrimination, based on Rittenberry's failure to aid the Union in its strike, tended to "encourage ... member- ship in [a] labor organization," even though Rittenberry was already a member of the Union, in the sense that it was aimed at compelling obedience to union policy. This discrimination, demonstrating the Union's strength, tends to encourage non- members to join it and other members to retain their membership. Therefore, it is found that the discrimination against Rittenberry was proscribed by Section 8(a)(3) of.the Act, as he was entitled to be redispatched to his pre-strike job when it was available, and the Union, by causing Tellepsen to so discriminate, violated Section 8(b)(2) 49 By the same conduct the Respondent Union also violated Section 8 (b) (1) (A). That section safeguards employees against restraint and coercion by a labor organi- zation "in the exercise of the rights guaranteed in Section 7." Section 7 confers on an employee the right to "assist labor organizations and to engage in other concerted activities ... or other mutual aid or protection"; but it also confers on employees the converse right "to refrain from any or all of such activities" except as limited by a valid union-security agreement. Rittenberry had the right to "refrain" from assisting the Union in its picketing activities and this abstention is protected from restraint and coercion.50 The Union's contention that the proviso to Section 8(b)(1)(A) immu- nized its conduct is rejected. This proviso provides that a union shall have the right to prescribe its own rules with respect to acquisition or retention of membership in the Union. The Union can prescribe its own rules with respect to the acquisition or retention of membership in the Union, but the Union cannot under cover of that right require conformity with the resolution it passed nor enforce its asserted rights in such a way as.to deprive one of its members of his employment.51 The inescapable effect of requiring adherence to the Union's resolution penalizing members for failure to comply was that existing members were compelled to picket in order to remain in good standing with the Union so as to preserve their opportunity for employment and thus remain eligible for assignment to jobs. Rittenberry was thus penalized by the denial of employment with the Company because of his failure to picket. It was against such deprivation of the opportunity to work that Section 8 (b) (1) (A) was directed.52 4, Alleged threats by Union with respect to charges filed by Rittenberry On May 13, 1956, Earl E. Ford, one of the Union's business agents, came to Ritten- berry's home and asked him "to change [his] statement, reword [his] statement .. . -Del D. Webb Construction Company, 95 NLRB 75, 82; Mundet Cork Corporation, 96 NLRB 1142, 1149-1150; Turner Construction Company, 110 NLRB 1860; Childs Com- pany, 93 NLRB 281. 481t is noteworthy that even on March 20 It was still necessary for the Company to obtain union clearance before Rittenberry could return to work. 4e Minneapolis Star and Tribune Company, 109 NLRB 727. 60 Contrary to the General Counsel's contention, this is not to be construed as holding that the imposition of the fine is violative of Section 8(b) (1) (A) as the proviso to this section precludes any such interference with the internal affairs of a labor organization. American Newspaper Publishers Association, 86 NLRB 951, 955-957; Minneapolis Star and Tribune, supra, p. 729. See volume 2, Legislative History of the Labor Management Relations Act, pages 1139-1141. 5 'Marlin Rockwell Corporation, 114 NLRB 553, 561. 53 93 Cong. Ree. 4436; see also 93 Cong. Rec. 4021, 4023, 4435. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 585 and drop the charges that [he] had filed with the Board." Ford told him that if he did not, his union book would be taken from him, thus precluding him from working. On May 24, 4 days before the hearing commenced in this proceeding, Frazier, a master mechanic at Tellepsen, invited Rittenberry to his home to meet with Homer Pierce, business manager of the Respondent Union. Pierce also told Rittenberry that if he did not drop the charge he would be unable to work in the construction industry within the jurisdictional area encompassed by the Union. It is found by this course of conduct whereby these union officials threatened Rittenberry, the Charging Party, with loss of his job unless he withdrew or changed the charge he filed with the Board that the Union coerced and restrained Rittenberry in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(b) (1) (A). Threatening Rittenberry with loss of employment was the most virulent form of restraint and coercion, for there is little to which a worker is more sensitive than loss of his earning capacity. The Respondent Union's conduct, therefore, falls within the ban of the plain meaning of Section 8(b) (1) (A).53 THE REMEDY It having been found that the Respondent Union was engaged in and its engaging in unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. Having found that the Respondent has violated Section 8(b) (1) (A) of the Act by restraining and coercing J. R. Rittenberry, the Charging Party, when it threatened him with loss of his livelihood if he did not change or withdraw the charge he had filed with the Board, it will be recommended that it cease and desist therefrom. It will be recommended that J. R. Rittenberry be made whole for any loss of pay suffered by him as a result of the discrimination practiced against him by the Re- spondent Union because he failed to picket during the strike. In computing the back pay due the Charging Party, the customary formula of the Board shall be followed.54 There has been considerable testimony in the record as to when subsequent to the termination of the strike a job was available for Rittenberry. The General Counsel argues that where there existed a discriminatorily operated hiring hall as here, back pay should not be computed from the date a job was available but from the date of the commencement of the discrimination since the Union 's action caused Rittenberry loss of earnings and, therefore, it should be chargeable for the consequences flowing therefrom. However, the Board has held that no back pay accrues until work be- comes available 55 It is clear from the record that Rittenberry asked Chennault, business agent of Respondent, to return him to his job on August 15, 1955, and that Chennault refused his request for proscribed reasons. It will be recommended, there- fore, that Rittenberry be made whole for any loss of pay he suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would have earned as wages from the date a job was available for him to March 20, 1956, the date when he returned to work. Thus, while it appears that at the precise moment when Rittenberry requested to be sent back to his job on August 15 his job was not available, it is clear that all of Tellepsen's striking employ- ees were back at work by December 13 and that but for Rittenberry's failure to walk the picket line, he would have been back on his job by at least that date. Rittenberry testified that both Looper and Cannard informed him that the truck he had operated immediately prior to the time he went on vacation was working on or about November 22, 1955. However, the record was not sufficiently developed with respect to deter- mining the exact date when a job became available. In any event, as a matter of Board procedure , such question can be more appropriately handled as a compliance matter.56 In view of the Board's ruling in H. E. Stoudt & Son, Inc., 114 NLRB 838, 841-842, it will be recommended that the Respondent W. C. Chennault, business agent of Respondent, should not be held personally liable for the reimbursement to Rittenberry. 'Local 29 4, International Brotherhood of Teamsters, etc. (Valetta Trucking Company), 116 NLRB 842; cf. Textile Workers Union of America, CIO (Personal Products Corpo- ration), 108 NLRB 743, 749. F. W. Woolworth Company, 90 NLRB 289. es Swinerton and Walberg Company, 94 NLRB 1079, 1080, enfd. 202 F. 2d 511, 515-516 (C.A. 9) ; Seabright Construction Company, 108 NLRB 8, 9. se Where an illegal hiring arrangement exists, the applicant need not continue to re- apply to establish that he is a victim of a discriminatory hiring policy. Daniel Hamm Drayage Company, Inc., 84 NLRB 458, 460, enfd. 185 F. 2d 1020 (C.A. 5). 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges that the Respondent "has illegally and coercively collected initiation fees and dues from the employees pursuant to the . closed shop hiring arrangement." The record, however, is not sufficiently developed with respect to whether dues and initiation fees were unlawfully collected from Tellepsen's employees although Rittenberry testified he paid an initiation fee. Therefore, this matter is left to the compliance stage of this proceeding for determination in accordance with the rule enunciated in J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594.57 The record demonstrates that the Union does not refer applicants for employment to Tellepsen Construction Company on a nondiscriminatory basis and that its referral practices are inconsistent with the nondiscriminatory operation of a hiring hall. The Union has maintained and enforced agreements, understandings, and practices in violation of Section 8(b)(2) of the Act which contain and involve terms and condi- tions of employment requiring compliance with qualification standards unilaterally determined by the Union before a job applicant can even be considered for employ- ment with no voice given the employer to accept or reject anyone referred by the Union. Accordingly, it will be recommended that the Respondent Union cease and desist from requiring employers for whom it supplies personnel to agree to any arrangement, oral or written, which by its terms require these employers to discrimi- nate against employees who are not members of the Respondent in regard to their hire or tenure of employment or any term or condition of employment except in accordance with the proviso in Section 8(a)(3) of the Act. Furthermore, it shall be recommended that the Respondent cease and desist from requiring job applicants to first apply for or obtain membership in the Union or obtain clearance from the Union before they can be eligible for employment. It having been conceded and found that the Union maintains contractual relation- ships with contractors other than Tellepsen, it is reasonable to anticipate that the Union will also discriminatorily require union membership or referral as a condition of employment by employees, or prospective employees, of such other employers with whom the Union maintains contractual relationships. Because it is believed that to effectuate the policies and purposes of the Act it is necessary to have a remedial order which is coextensive with the violations which are reasonably to be anticipated, it is recommended that a cease-and-desist order be issued enjoining the Union from com- mitting this and similar violations against employees of any other employer provided such other employers are employers over whom the Board would assert jurisdiction in an appropriate proceeding. International Brotherhood of Teamsters, etc. (De- Prizio Construction Company), supra. Section 10(c) requires not only that the equities between employers, labor organi- zations, and employees be balanced but that the remedy remove and eliminate ob- structions to commerce for the public benefit. Because Tellepsen has not been joined in the complaint as a respondent in this proceeding, this case presents a novel problem with respect to fashioning a remedy which will undo the effects of the Respondent's unfair labor practices.58 Consequently, the affirmative remedial action which can be ordered is necessarily limited and renders difficult, if not impossible, accomplish- ment of the congressional mandate of undoing the effects of the unfair labor practices found herein. Merely because Rittenberry would be compensated for the discriminatory treatment he received does not necessarily effectuate the public policies of the Act. Undoing the effects of the unfair labor practices goes beyond this: it envisages publicly signifi- cant rights of all the employees who are represented by the Union. Discrimination exercises a restraining and coercive effect upon the rights not only of the immediate victim but upon the rights of all present or future members of the Union; it impresses upon them the danger to their welfare and security if they should incur the displeasure of their Union. If these rights are being impinged upon, or perhaps disregarded entirely, then it is important that those rights be restored and the cause therefor eradicated. Accordingly, the remedy should not only restore the victim of the dis- crimination to the position from which he was unlawfully excluded, but also, and more significantly, it should dissipate the coercive effects upon other employees who may desire other avenues of self-organization to be opened up to them but who have been discouraged or prevented therefrom by the threat to them implicit in the dis- crimination suffered by a fellow member who incurred the displeasure of their repre- sentative: To say that the Act provides these employees with a means whereby they 57 See article XXIII, subdivision 7, beginning at page 93 of the Respondent's constitu- tion (General Counsel's Exhibit No. 4) ; International Brotherhood of Teamsters etc., Local 179 (De Prizio Construction Company), 110 NLRB 287, 288. °Section 10(e) of the Act. LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 587 can rectify their predicament seems somewhat naive and unrealistic when the eco- nomic reprisals inherent in this situation are considered. An order merely requiring the Respondent to cease and desist from giving effect to its currently existing discriminatory hiring-hall arrangement does not, in the opinion of the Trial Examiner, adequately remedy the situation disclosed by this record, because the Union will continue to retain the accrued benefits gained through its violation of the Act. It would seem that the effect of the violations under this illegal hiring-hall arrangement are such as to make it inequitable to permit the Respondent who has not been certified by the Board as the collective-bargaining agent of the employees to enjoy continued representative status which it may have perhaps acquired and presumptively strengthened over the years by means of this illegal hiring-hall arrangement. The Board has recently indicated its concern in an analogous situation 59 where an employer had neglected to obtain his workers' consent to be represented by a bargaining agent when he signed an employer association contract with a union. The Board held that the employer's action was illegal since his employees were not given an opportunity to vote on the question of whether they wished to be represented on an overall basis by the Union. Moreover, it would seem that the prize of recognition of a union by an employer should not be utilized by a union to coerce workers into becoming or remaining members of a union which the workers may be found to have never had a choice in selecting or if the employees' right to choose their own representative was barred by the employer's entirely independent action. Similarly, by thus conditioning employ- ment on preexisting union membership, the Board's performance of its duty to deter- mine what union, if any, the majority wants, may not only be blocked but may result in statutory stultification. So too, in this proceeding, plenary effectuation of the statutory policies and purposes cannot be achieved because of the insufficiency of the parties and the deficiency of the complaint, with its consequential limiting of the issues. Therefore, an adequate remedy can not be fashioned nor a determinative order issued which will eradicate all the resultant effects of Respondent's unfair labor practices.so Whether under the issues drawn by the pleadings and the record herein it would be proper, nevertheless, to issue an order prohibiting the Respondent Union from representing the employees in collective-bargaining negotiations unless it is certified by the Board is not here decided. This is an innovation more properly within the province of the Board. It is believed that the Union's unfair labor practices found above are potentially related to similar unfair labor practices and that danger of future commissions of such unlawful acts may be anticipated from its past course of conduct. The preven- tive purposes of the Act will be thwarted unless the order is coextensive with the threat. Accordingly, it is recommended that a broad cease-and-desist order shall issue against the Union, encompassing all employers within its territorial jurisdiction over whom the Board would assert jurisdiction. CONCLUSIONS OF LAW 1. Tellepsen Construction Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Local 450 is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Respondent W. C. Chennault was an agent of the Union within the meaning of Section 2(13) and Section 8(b) of the Act. 4. The violative activities of Respondent set forth above, occurring in connection with the operations of the Company described 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. 5. By restraining and coercing J. R. Rittenberry in the exercise of rights guaranteed to him in Section 7 of the Act, and by preventing him from engaging in employment with the Company and threatening him with loss of his job if he did not change or withdraw his then pending charge which he had filed with the Board, the Respondent 59 Mohawk Business Machines Corporation, 116 NLRB 248. See also John B. Shriver Company, 103 NLRB 23, 38, 39, 43. 60 See Eichleay Corporation v. N.L.R.B., 206 F. 2d 799, 804-806 (C.A. 3) ; Monolith Portland Cement Company, 94 NLRB 1358. See also Julian Freirich Co., 86 NLRB 542, where a respondent employer who violated Section 8(a) (1) of the Act by unlawfully assisting and supporting a union was ordered to withdraw recognition from the union unless it was certified by the Board. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. By preventing the Tellepsen Construction Company from promoting Rittenberry to a supervisory position and by causing the Company to discriminate against him, in violation of Section 8(a)(3) of theAct, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 7, The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication] APPENDIX B The agreement between Respondent Union and the Houston Chapter of the Asso- ciated General Contractors, of which Tellepsen Construction Company is a member, provides in pertinent part as follows: ARTICLE IV Estimated Forces In order to economically and efficiently serve the building public, it is impor- tant to have experienced, skilled workmen . Contractors recognize the Union as a source of such skilled manpower and will, therefore, use it as a source when in need of employees . The Union agrees that when Contractors request employees, it will exert every effort to supply skilled men. ARTICLE VIII Qualifying Intent It is not the intent of either party hereto to violate any law or any ruling or regulation of any Government authority or State agency having jurisdiction of the subject matter of this agreement. Working Conditions Section 15.-Master Mechanic, Assistant and Engineer Ratio (A) When as many as four (4) Operating Engineers are employed on any one job, one shall be a master mechanic who may be required to work at his trade but shall receive a master mechanic's pay. (B) When there are six (6) or more Engineers employed on a job, one shall be a master mechanic who shall not work with the tools but perform the custo- mary duties of a master mechanic. * * * * * * (F) The master mechanic or assistant master mechanic shall have full and complete charge of the men under him and discharging of his men shall be done through him. (G) All master mechanics and assistant mechanics must be practical mechan- ics of the craft they represent and have three (3) years or more of experience at their trade. * * * * * * Section 20.-General Conditions * * * * * * * (I) The Steward shall be the representative of the Union on the job. He shall not be discriminated against for any lawful Union activity and shall at all times be given ample time to take care of lawful Union business. The Steward shall be appointed by the business representative and he shall be the last man to be laid off, provided that in the opinion of management, he is qualified to do the work available. APPENDIX C The constitution of the International Union of Operating Engineers provides in: Article XV, Section 2 (d). No member desiring to transfer into another local union shall negotiate for, accept or commence work until his clearance card has been accepted or a Jour- CIE GRAND UNION COMPANY 589 neyman Engineer's Temporary Permit shall have been issued to him as herein- after provided. If and when his clearance card is accepted , he shall be governed by the wage scale rules and by-laws of said Local Union. Article XV, Section 3 (a). Members of one Local Union shall not seek employment , be employed, or remain at work at the craft within the territorial jurisdiction of another Local Union without the consent of such other Local Union, which consent may be evidenced by its acceptance of the clearance card presented to it by the member involved, as provided in the constitution or by the issuance of the temporary , permit hereinafter described. If the member involved does not present a clear- ance card to such other Local Union, or the Local Union to which the clearance card is presented fails to act thereon, or the Local Union to which the clearance card is presented acts thereon and refuses to affiliate such member , and the Busi- ness Representative of such other Local Union , in such cases, shall thereupon consent to the issuance of the temporary permit (described herein) then the member involved shall be entitled to receive and required to secure successively, during the period within which said consent be granted and his work continue, such number of weekly journeymen engineers' temporary permits if he is a stationary engineer, as shall be issued to him by the said Business Representative under the regulations established by the General Excutive Board. Such permits shall, for the period issued, allow the holder thereof to seek, accept, and hold employment within the territorial jurisdiction of such other Local Union out of which said temporary permits shall be issued, but subject always to such regula- tions as shall be imposed thereon by the General Executive Board. Article XV, Section 3 (c). No member of this organization shall be permitted to remain at work at the craft in the territorial jurisdiction of any other Local Union than the one to which he shall belong for a longer period of time than that covered by the temporary permit issued to him, nor shall any such member working under the authority conferred by a temporary permit be removed from said work or replaced by a member of the Local Union issuing the said temporary permit until the expiration of the period for which the said temporary permit was issued, unless such removal be for a good and sufficient cause. Article XV, Section 3 (h). , No temporary permit as described in this article shall be issued to or used by any person who is not, at the time, either a member of the International Union of Operating Engineers or an applicant for membership therein. Article XXIII, Subdivision 3, Section (a). Members of Local Unions shall conform to and abide by the Constitution, Laws, Rules, Obligation and Ritual, and the decisions, rulings, orders and direc- tions of any authority of the International Union empowered by this Constitu- tion to make them. Each member shall keep the Recording-Corresponding Secretary properly and promptly notified of his residence and any change thereof. Each member shall hire none but those in good standing with a Union having jurisdiction over the work to be done nor purchase commodities without the union label thereon when otherwise possible. The Grand Union Company and Robert E. Gray Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Robert E. Gray. Cases Nos. 2-CA-5225 and 2-CB 1872. December 19, 1958 DECISION AND ORDER On July 8, 195'8, Trial Examiner Herbert Silberman issued his Intermediate Report in the above consolidated proceeding, finding that .the. Respondent Employer had engaged in and was engaging in. certain unfair labor practices in violation of Section 8 (a) (1) 122 NLRB No. 68.