C. Rasmussen & Sons

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire or tenure of employment of Bessie Schaumann, Mildred Ellison, Josephine Barges, Verna Goatcher, and Mary Daven- port, the Respondents have engaged in and are engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 3. By such discrimination, and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, through surveillance and interrogation of its employees, and warnings and threats to them, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Walter Rasmussen d/b/a C. Rasmussen &.Sons and Paul Swallick Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Paul Swallick. Cases Nos. 22-CA-75 and 22-CB-24. December 29, 1958 DECISION AND ORDER On June 12, 1958, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent Local 469 and the General Counsel filed exceptions to the Intermediate Report with supporting briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error has been com- mitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case and adopts the Trial Examiner's findings and conclusions only to the extent that they are consistent with the findings and conclusions set forth below. 1. We find, in substantial agreement with the, Trial Examiner, that Rasmussen had discriminated in regard to the hire and tenure of employment of Paul Swallick, thereby violating Section 8(a) (3) and (1) of the Act by the following conduct : (a) Prematurely laying off Swallick on July 26, 1957, pursuant to the union-security provision of the contract because he had failed to straighten out his union book or otherwise to obtain membership I As Respondent Rasmussen filed no exceptions to the finding that it violated Section 8(a) (1) and (3) of the Act, we shall adopt the findings without comment except as otherwise stated herein. 122 NLRB No. 85. C. RASMUSSEN & SONS 675 in or clearance from Respondent Local 469, since the contract did not require Swallick's membership in Local 469 until after the expiration of the 30-day grace period. (b) Not rehiring Swallick on August 21 and again on August 26 after the Okonite strike was over when work for Swallick became available, because he was unable to obtain clearance from Local 469. (c) Accepting on July 31 Local 469's determination that the matter of clearance or transfer of Swallick be deferred until the end of the cement and concrete strike. 2. We also agree with the Trial Examiner that Local 469 by obstructing and eventually denying Swallick's request for a transfer from Local 701 into Local 469, caused or attempted to cause Re- spondent Rasmussen to discriminate in regard to the hire and tenure of employment of Paul Swallick, thereby violating Section 8(b) (2) and (1) (A) of the Act. Local 469 attempts to justify its failure to transfer Swallick to Local 469 on the ground that Swallick had at no time taken the steps necessary to consummate such a transfer. In particular, it is asserted that Swallick never complied with the provisions of the constitution with respect to transfers from a sister local, namely, that he had never obtained from Local 701 and submitted to Local 469 a transfer card within the 30-day period. The contention is without merit for two reasons. First, the Trial Examiner found, and we agree, that under the constitution of the International no transfer card could have been issued by Local 701 to Swallick without the approval in writing from Secretary Treasurer Volosin of Local 469 of the contemplated transfer to Local 469, and that Volosin by his failure to issue such an approval effectively obstructed and prevented the issuance by Local 701 of any transfer card to Swallick. Secondly, assuming that Swallick did fail to comply with the Local 469's requirements for transfer, the denial of the transfer by Local 469 on that ground, insofar as it affected Swallick's employment with Rasmussen, was unlawful because membership in the Union under the union-security provision of the contract could have been lawfully denied only for failure ^ to, tenderdues,and in- itiation fees uniformly required as a condition of acquiring mem- bership in the Union. No such contention was made by Local 469. Assuming further that the transfer was denied pursuant to an oral hiring arrangement or understanding requiring clearance as a condi- tion of employment with Rasmussen, such denial would be also violative of the Act regardless of the reason asserted therefor. 3. We also find, as alleged in the complaint, that Respondent Rasmussen has violated Section 8 (a) (3) and (1) of the Act, and Respondent Local 469 violated Section 8 (b) (2) and (1) (A) by per- forming, maintaining, or otherwise giving effect to an oral employ- 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment arrangement, understanding, or practice which requires mem- bership in, and clearance by, Local 469 as a condition of employment ; and that Swallick was discriminated against by Rasmussen and denied clearance by Local 469 pursuant to this employment ar- rangement. Although the Trial Examiner, in finding a violation of the above sections of the Act, proceeded on the assumption that Swallick was discriminated against by Rasmussen and denied clearance by Local 469 pursuant to such an arrangement, understanding, or practice, he made no specific finding that the Respondents herein violated the Act by performing and maintaining such oral arrangement or . understanding.2 It is to this failure of the Trial Examiner to make such specific finding that the General Counsel now excepts. We find merit' in this exception. The record, in our opinion, amply sustains the allegation of the complaint to this effect. Swallick, who was a member of sister Local 701, was hired by Rasmussen on July 22, 1957. He reported for work at the Rasmussen yard on July 23. Two days later, shop steward of Local 469, Frank Huda, commenting on Swallick's employment, told Rasmussen and Swallick that "Local 469 ... jumped all over ... [him] for letting Rasmussen hire a 701 man," and that Swallick would have to go. to the union hall and straighten out his union 'book with the president of Local 469, Tom Kelly. On that.occasion, Huda also stated that Frank • Volosin, secretary-treasurer of Local 469, told him "that Rasmussen would have to call 469 for a driver," and that "it is- in the contract, that Mr. Rasmussen knows all .about it, that he has- to call 469 for a driver." Rasmussen not only failed to register- his dissent from this interpretation of the contract or arrangement between him and Local 469, but joined Huda in advising Swallick-' to see President Kelly the next morning in order to straighten out his 'union book .3 -After Swallick's.: unsuccessful attempt on. the. morning .of Friday; July 26, 'to see President Kelly and his return, to the Rasmussen yard later in the. day; he was questioned by' Rasmussen and Huda as to the. outcome of his visit- to : the union hall.. Swallick informed them that he: could not see, President Kelly,. but that he would see. him next Monday, and that in the meantime, he was permitted to work that -day, . Huda and Rasmussen, however,, did not, take Swallick's word, :but went into • the office; to' telephone, Volosin to verify Swallick's. statement. 'Upon their return, Huila. .informed Swallick that he could work that' day,,that ".Volosin o.k.'d. 2In section 1(c) of his , proposed order the Trial Examiner recommended that Ras- mussen and Local 469 be directed to cease and desist from. performing, maintaining, or giving effect to any. employment arrangement or practice whereby: employees are required as 'a condition of employment to obtain clearance from a labor organization. This evidence !stands uncontradicted on'the record . Rasmussen did not deny it, and Huda , who was still employed at the time , of the hearing by Rasmussen , was not called^ upon to testify. C. RASMUSSEN ' & SONS 677 it," but that Swallick was to be sure to go down to the union hall next Monday and see Kelly or Riley and, straighten out his union book. With the Okonite job no longer available because of. the ,strike, Swallick was assigned that day to some. other work. At the end of the working day Rasmussen told Swallick that he could use him next Monday if he straightened out his union book 4 . Swallick testified without contradiction that at this time he and Rasumssen reached an understanding that his further employment would depend upon his ability to straighten out with Local 469 his union book. While Huda's and Rasmussen's 'preoccupation with Swallick's union status and their insistent demands that he immediately straighten out his union book cannot be explained under the union- :security provision of the contract, the 30-day grace period of. which had not then expired, such demands would but naturally flow from a preferential hiring arrangement between the Respondents that required a clearance from Local 469 as a condition of employment. Indeed, Swallick's conversation with Secretary-Treasurer Volosin in the morning of July 26 clearly demonstrates the existence of some such arrangement. Swallick testified5 as follows : So as soon as I walked in [Volosin's office], I asked him, "What's this I hear, Rasmussen can't hire a 701 man-" So he said, "Well, what you expect? We got two hundred men out of work. And he is going to put on men out of a different local." I says, "Don't you think Mr. Rasmussen has the privilege of putting a man who he thinks has the ability and everything to drive that truck?" And he says, "Well, he knows it is in the contract that he is supposed to call the hall for a driver." I says, "Well, that, I don't know." Swallick's efforts to meet with President Kelly were not suc- cessful until July 29 when he caught him in the parking lot as Kelly was about to drive away. Swallick asked Kelly whether Volosin had told him about his case. Kelly said : "Yes, I got that Rasmussen fellow coming down ... I will see him in a couple of days and everything will be taken care of." Kelly and Rasmussen admittedly met in the union hall on July 31. Following this con- ference Swallick asked Rasmussen whether they reached any agree- ment with regard to his cases Rasmussen said : "Tom Kelly told * This testimony of Swallick also was not denied by Rasmussen, and was substantially credited by the Trial Examiner. Huda did not testify. B Swallick's testimony was denied by Volosin. The Trial Examiner made no credibility determination. However, in view of the uncontroverted evidence attributing to Volosin a statement in which he criticized both Shop Steward Huda and Rasmussen for hiring and/or permitting the hire of a member of Local 701, and the finding of the Trial Examiner 'that Local 469 had caused Rasmussen to deny employment to Swallick by obstructing and eventually denying transfer or clearance to. Swallick, we credit Swallick's testimony as inherently probable and we reject Volosin's denial. Rasmussen 's and Kelly's denials that they discussed Swallick 's case at this con- ference were not credited by the Trial Examiner. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me after the cement and concrete strike is over, we will see what we can work out. Well, we'll leave it as it is until the cement and concrete strike is over."7 As Swallick was not required under the terms of the union-security provision of the contract to become a member of Local 469 until after the expiration of the 30-day grace period, Rasmussen's acquiescence in Kelly's determination as to whether, and/or when, Swallick would resume working for Rasmus- sen can be explained only by the existence of some hiring arrange- ment or understanding pursuant to which Rasmussen delegated the power to hire or to clear for hire to Local 469. Although work at the Rasmussen yard became available for another driver before the end of the Okonite. strike, Rasmussen did not re- hire Swallick for that work. Instead, he called upon Local 469 for referral of a new driver. Local 469 then referred Richard Reed, a member of Local 469, who reported for work on August 21. Rasmussen also did not rehire Swallick on August 26 after the termination of the Okonite strike when he had resumed service for the Okonite Company. Again, as on previous occasions, Rasmussen informed Swallick that he could use him, but only if he obtained clearance from Local 469. Questioned by the Trial Examiner as to why he did not rehire Swallick on that occasion, Rasmussen testified that it was because Swallick "hadn't gotten straightened out with 469 after the 30-day period, and I had to keep my work going and I had to have a man from 469 to run the truck, otherwise I wouldn't be able to go out there, to operate the truck." However,, Rasmussen's reliance on Swallick's failure to straighten out his union book within the 30-day grace period as an excuse for not hiring was clearly an excuse and without merit. If, as testified by Rasmussen, he discharged Swallick on August 6, he could have rehired Swallick on August 21 and again on August 26 without violating the union-security contract, for, as an applicant for em- ployment, Swallick was entitled to the 30-day grace period from the date of the new employment within which to join Local 469. In view of the evidence set forth above, we find that the Re- spondents herein have performed, maintained, or otherwise given effect to an oral arrangement, understanding, or agreement whereby applicants for employment, or employees of Respondent Rasmussen, including Swallick, were and are required to be or become members in good standing of Local 469 and to receive clearance or approval from Local 469 as a condition of employment. Respondent Rasmus- sen has thereby placed Respondent Union in control of his hiring and has abdicated such function to the Respondent Union. We a The record contains no information as to when this strike, which must not be con- fused with the Okonite strike, was terminated, if at all. The result of this determination by Kelly, however, was to defer the consideration of Swallick's case until some in- definite time. C. RASMUSSEN &. SONS 679 further find that, as such an arrangement or agreement does not provide safeguards deemed essential to the legality of exclusive hiring arrangements, Respondent Rasmussen thereby violated Sec- tion 8(a) (1) and (3) of the Act, and Respondent Local 469 thereby violated, Section. 8(b) (1) (A), and, (2) of the Act.8 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 performed, maintained, or otherwise given effect to an oral arrangement or practice whereby applicants for employment were required to be or become, members in good standing of Local 469 and to receive clearance or approval from Local 469 as a condition of employment. We shall, therefore, order them to cease and desist from performing or maintaining such arrangement or practice which does not provide for the safeguards prescribed in the Board's decision in Mountain Pacific.9 We have also found that under the oral arrangement or practice between the Respondent Union and the Respondent Company mem- bership in good standing was unlawfully imposed as a condition for securing and retaining employment with the Respondent Company, thereby inevitably coercing 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 moneys. The payment of such moneys when made thus constituted the price the employees had to pay for their jobs in disregard of their statutory rights. In order to expunge the coercive effects of such illegal exac- tion, we find it necessary and appropriate in effectuating the policies of the Act to direct the Respondents, jointly and severally, to reimburse Swallick and all other employees referred by the Re- spondent Union pursuant to the aforesaid hiring arrangement or practice for the moneys so collected.10 However, in conformity with Section 10(b) of the Act, the Respondents' liability for the moneys so exacted shall not in any event extend beyond the period begin- ning 6 months before the filing and service on each of the Re- spondents of the charges herein. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: 8 See Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883; cf. Morrison-Knudsen Company, Inc., et al., 121 NLRB 247. 6 Mountain Pacific Chapter of the Associated General Contractors, Inc., supra. 10 United Association of Journeymen & Apprentices, etc. (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594; Broderick Wood Products Company, 118 NLRB 38, enfd. 261 F. 2d 548 (C.A. 10) ; Los Angeles-Seattle Motor Empress, Incorpo- rated, 121 NLRB 1629. '680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Respondent Walter Rasmussen d/b/a C. Rasmussen. & Sons, Newark, New Jersey, his agents, successors, and' assigns, shall: 1. Cease and desist from: '(a) Discriminating in regard to the hire and tenure of employ- ment of Paul Swallick' or any. other employee with respect' to whom membership in Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been denied on some ground other than his failure* to tender the periodic, dues and.initiation fees uniformly required as a condition of acquiring or retaining membership, therein: (b) Performing, maintaining, or giving effect to any employment arrangement, understanding, or practice. with Respondent Local 469; International Brotherhood of Teamsters,. Chauffeurs,, Warehousemen and Helpers of America, whereby Paul Swallick or any other em- ployee or applicant for employment is required as a condition of employment to become a member in good standing of Local 469, or to obtain clearance or approval from Local 469 or any other labor organization, or in any other like or related manner inter- fering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment in accordance with 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) Offer to Paul Swallick immediate and full reinstatement to his former or substantially equivalent position without prejudice to any rights and privileges previously enjoyed, dismissing if neces- sary any drivers hired on and after July 26, 1957. - (b) Jointly and severally with Respondent Union make whole Paul Swallick for any loss of pay suffered by him as a result of the discrimination found herein to the extent set forth above in section V of the Intermediate Report entitled "The Remedy." (c) Jointly and severally with the Respondent Union, reimburse Paul Swallick and all other employees for all initiation fees, dues, and other moneys they were illegally required to pay in order to secure or retain employment in the manner and to the extent set forth in the section herein entitled "The Remedy." (d) Preserve and make available, upon request, to the Board and its agents for examination and copying, all records necessary or useful to determine the amount of back pay and other rights and privileges to which Paul Swallick may be entitled under the terms of this Order. C. RASMUSSEN & SONS 681 (e) Post at its office at Fords, N. J., copies of the notice' at- tached hereto marked "Appendix A.711 Copies of said notice, toy be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by representatives of C. Rasmussen & Sons, be posted by said Respondent immediately upon receipt thereof, and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent C. Rasmussen & Sons to insure that said notices are not altered, defaced, or covered by any other material. (f) Permit posting on the employee bulletin boards of its offices at Fords, N. J., of the notice required to be posted by Respondent Union pursuant to section B, 2(d) of this Order, and inform the Union of this permission. (g) Notify the Regional Director for the Twenty-second Region ,in writing, within ten (10) days from the date of this Order, what steps Respondent C. Rasmussen & Sons has taken to comply herewith. B. Respondent Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, and agents, shall: 1. Cease and desist from : (a) Performing, maintaining, or otherwise giving effect to any employment arrangement, understanding, or practice with Respond- ent C. Rasmussen & Sons whereby Paul Swallick or any other employee 'or applicant for employment is required as a condition of employment to be or become a member in good standing of Local 469, or to obtain clearance from Local 469. (b) Causing or attempting to cause Respondent C. Rasmussen & Sons, or any other employer whose business operations satisfy the Board's requirements for assertion of its jurisdiction, to determinate in regard to the hire and tenure of employment of Paul Swallick or any other employee with respect to whom membership in such organization has been denied upon some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership therein. (c) In any like or related manner restraining or coercing em- ployees of Respondent C. Rasmussen & Sons or any other employee in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition, of employment, as authorized under Section 8(a) (3) of the Act. u•In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order:"' 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Respondent Union shall forthwith notify Respondent C. Ras- mussen & Sons by registered mail that it has no objections to the hiring and employment of Paul Swallick, and shall formally request that said employee be immediately reinstated to his former or sub- stantially equivalent position as a tr^uckdriver. (b) Jointly and severally with Respondent C. Rasmussen & Sons make whole Paul Swallick for any loss of pay suffered as a result of the discrimination found herein to-the extent set forth in section V of the Intermediate Report, entitled. "The Remedy." (c) Jointly and severally with the Respondent C. Rasmussen & Sons, reimburse Paul Swallick and all other employees of the Re- spondent Company for all initiation fees, dues, and other moneys they were illegally required to pay in order to secure or retain employment with the Respondent Company in the manner and to the extent set forth in the section herein entitled "The Remedy." (d) Within ten (10) days from receipt of this Order notify Paul Swallick and the Regional Director for the Twenty-second Region, Newark, N. J., what steps it has taken to comply with the Order herein. (e) Post at its office and meeting halls in Perth Amboy, N. J., and send to Respondent C. Rasmussen & Sons for display at its office at Fords, copies of the notice attached hereto marked "Ap- pendix B.712 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being signed by the representatives of Respondent Local 469, be posted by it immediately upon the receipt thereof, and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees and union members are customarily posted. Reasonable steps shall be taken by Respondent Local 469 to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Twenty-second Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. MEMBER BEAN took no part in the consideration of the above Decision and Order. 12 See footnote 11. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that: C. RASMUSSEN & SONS 683 WE WILL NOT perform, maintain, or give effect to any employ- ment arrangement, understanding, or practice with Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or with any other labor organiza- tion, which unlawfully conditions the hire of applicants for employment or the retention of employees in employment' upon membership in or clearance or approval by the aforementioned labor organization, except as authorized by Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner encourage mem- bership in the aforementioned labor organization, or in any other labor organization, or otherwise interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization in accordance with Section 8(a) (3) of the Act. WE WILL offer to Paul Swallick immediate and full rein- statement to his former position without prejudice to seniority and other rights and privileges previously enjoyed, and will make him whole for any loss of pay suffered by reason of our discrimination against him. WE WILL, jointly and severally with the aforesaid labor or- ganization, reimburse Paul Swallick and all other employees for any initiation fees, dues, and other moneys they were illegally required to pay in order to secure or retain employment with our company. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by an agreement authorized by Section 8(a) (3) of the Act. WALTER RASMUSSEN d/b/a C. RASMUSSEN & SONS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 469, INTERNATIONAL BROTHERHOOD or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our members that: :684 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD WE WUL NOT perform, maintain, or give effect to any employ- ment arrangement or practice with Walter Rasmussen d/b/a C. Rasmussen & Sons, or with any other employer whose business operations satisfy the Board's. requirements for assertion of its jurisdiction, which unlawfully conditions the hire of applicants for employment, or retention of employees in employment, upon membership in, or clearance or approval by the afore- mentioned labor organization, except as authorized by Section 8(a) (3) of the Act. WE WILL NOT cause or attempt to cause Walter Rasmussen d/bja C. Rasmussen & Sons or any other employer to dis- criminate in regard to the hire or tenure of employment of Paul Swallick or any other employee in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor or- ganization in accordance with' Section 8(a) (3) of the Act. WE WILL notify in writing Walter Rasmussen d/b/a C. Ras- mussen & Sons that all our objections to the hiring and employment of Paul Swallick have been withdrawn, and request that he be immediately reinstated to his former or substantially equivalent position without prejudice to seniority or other rights and privileges previously enjoyed. WE WILL make whole Paul Swallick for any loss of pay suffered by him by reason of the discrimination against him. WE WILL, jointly and severally with the aforesaid company, reimburse Paul Swallick and all other employees for any in- itiation fees, dues, and other moneys they were illegally required to pay in order to secure or retain employment with the afore- said company. LOCAL 469, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These proceedings authorized and conducted under Section 10 of the Labor Management Relations Act, 1947, as amended, 61 Stat . 136, herein called the Act, were heard before the duly designated Trial Examiner in Newark , N.J., on 'C. RASMUSSEN & SONS 685 April 7, 8, and 9, 1958. Upon charges filed by Paul. Swallick (an individual) on September 3, 1957, against Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Local 469 or Respondent Union), and on December 10, 1957, against. Walter Rasmussen doing business as C. Rasmussen & Sons (herein called the Employer or Respondent. Rasmussen), the General Counsel of the National Labor Relations Board (herein separately designated as General Counsel and the Board) issued a consolidated complaint alleging that Respondent Rasmussen has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act; that Respondent Union engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act; and that such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. . Copies of the charges, complaint, and notice of hearing were duly served upon all Respondents. . With respect to the unfair labor practices, the complaint with more particularity alleges that: (1) Respondent Rasmussen and Respondent Union abided by, main- tained, and enforced an unlawful arrangement, understanding, or agreement, whereby employees and applicants for employment were and are required to be or become members in good standing of Local 469 and to receive clearance or approval from Respondent Union as a condition of employment with Respondent Rasmussen; (2) on or about July 25, 1957, Respondent Union did unlawfully demand and require that Respondent Rasmussen discharge and refuse to rehire Paul Swallick because he was not a member in good standing of Local 469 for reasons other than his failure to tender periodic dues and initiation fees and because he had not received clearance or approval from Respondent Union as a condition of employment with Respondent Rasmussen; and (3) on or about July 26, 1957, Respondent Rasmussen did discharge and thereafter refused to reinstate or rehire Paul Swallick because he was not a member in good standing of and had not received clearance or approval for employment from Local 469. In due course each of the Respondents filed an answer to the complaint denying all allegations of unfair labor practices. Each admitted, either in its answer or by later stipulation at the hearing, all allegations of the complaint with respect to commerce and jurisdiction of the Board. Pursuant to notice duly served upon all parties, a hearing. was' held at Newark, N.J., on April 7, 8, and 9, 1958, before the Trial Examiner duly designated by the Chief Trial Examiner. All parties were present and represented by counsel. Throughout the hearing, all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues involved. At the conclusion- of the hearing, counsel for all parties waived oral argument and were granted 20 days within which to file written briefs and proposed findings and conclusions with the Trial Examiner. None were filed within the time allowed, and no requests for extension of the time were received. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF THE EMPLOYER Respondent Rasmussen is an individual proprietor doing business under the laws of the State of New Jersey, having and maintaining his principal office and place of business at 902 King George's Road, Fords, N.J., where he is engaged in the business of furnishing and performing rigging, hauling, trucking, and related serv- ices. Within a 12-month period immediately prior to the filing of the complaint, Respondent Rasmussen in the course of his business operations furnished, supplied; and. rendered services valued in excess of $300,000 to various companies and enter- prises located in the State of New Jersey, each of which was engaged,in interstate commerce by shipping materials and finished products valued in excess of •$50,000 per annum across State lines to destinations outside the State of New Jersey. I find, therefore, that Respondent Rasmussen is engaged in commerce within the meaning of Section 2(6) and (7) of. the Act. H. THE LABOR ORGANIZATION INVOLVED Respondent Union, Local 469, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. Its local officers include Thomas J. Kelly (president and business director), Patrick Reilly (vice president and busi- ness agent), and Frank J. Volosin (secretary-treasurer). The union hall and offices of Local 469 are located at Perth Amboy, N.J. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The bargaining agreement On or about July 24, 1956, Respondent Rasmussen and Local 469 entered into a written agreement to govern the wages, hours, and working conditions of truck- drivers (chauffeurs, etc.) employed by Rasmussen from May 1, 1956, until May 1, 1958, which contained union-security provisions, as follows: Section 1 (a) The Company hereby recognizes the Union as the sole and exclusive bargaining agent for all classifications of employees listed in the following Section 2. (b) Throughout the term of this agreement all employees shall be required as a condition of employment to become members of the Union on and after thirty days following the beginning of employment or the effective date of this. agreement, whichever is the later. (c) The superintendent or man in charge shall immediately, upon employ ment, notify the Shop Steward or the Union if there is no Shop Steward of the employment of any man who, under this agreement may be required to be a member of the Union. Upon notice from the Union that any employee who has been employed more than thirty (30) days has failed to tender the periodic dues and initiation fees uniformly required as a condition of acquiring and retaining membership, the employer agrees to discharge such employee within seven (7) days after receipt of written notice from a properly authorized official of the Union. [Emphasis supplied.] Pursuant to this agreement Respondent Rasmussen initially employed Frank Huda and Willard Smith as truckdrivers. By reason of seniority Huda was paid the hourly wage of $2.69 provided for a shop steward, and Smith was paid the wage of $2.44 as a chauffeur. Both were members of Local 469. Thereafter, the latter was discharged on or about July 19, 1957, and immediately filed a grievance against the Employer by and through the Respondent Union. As a replacement for Smith, Respondent Rasmussen on July 22, 1957, hired Paul Swallick, a member of sister Local 701. B. Employment and discharge of Paul Swallick Swallick was formerly a member of Local 469, but had transferred his mem- bership to Local 701 upon the acceptance of employment in another locality, and was currently working for Interborough Trucking Company at Metuchen, N.J. After work hours on Monday, July 22, 1957, Walter Rasmussen (Respondent) approached Paul Swallick in a neighborhood bar-grill and inquired whether he would be interested in employment as a truckdriver. In course of the conversation, Rasmussen proposed to employ Swallick on a regular basis of 8 hours a day from approximately 4 p.m. to midnight to operate a dump truck removing industrial waste and garbage from the premises of Okonite Manufacturing Company (herein called Okonite). In addition, he would be employed on an hourly basis for over- time work when available. Little was said about his compensation, because it was understood that wages would conform to the union scale provided in the contract. Swallick took the offer under consideration, and after discussing the matter with his wife and his current employer, notified Respondent Rasmussen several hours later that he would accept the job. Consequently, Swallick reported for work with C. Rasmussen & Sons at approxi- mately 8 a.m. on Tuesday, July 23, 1957. As his first work assignment, Rasmussen. despatched Swallick with a winch .truck to move a press for the Carborundum Company. Upon completion of that assignment, Swallick proceeded with a dump truck about 5 p.m. to the Okonite plant, accompanied by Shop Steward Frank Huda to explain the new operation. Having completed the daily routine at Okonite about 11 p.m., Swallick then went home. On Wednesday. July 24, 1957. Swallick reported for work at approximately 4:30 p.m.. proceeded to the Okonite plant with a 'dump truck and performed the routine duties of removing waste and garbage from the plant premises. On Thursday, July 25. 1957. Swallick reported for work at approximately 4:15 p.m.. and had a conversation with Proprietor Walter Rasmussen and Shop Steward Frank Huda with respect to his union membership status. Huda told him to go down to the union hall of Local 469, and get his union book (card) straightened out.. There was some discussion of rumors about. a strike at the C. RASMUSSEN & SONS 687 Okonite plant, and Respondent Rasmussen directed him to proceed as usual to the. plant, but not to cross any picket line. Upon arrival at Okonite, Swallick found a picket line, and reported to the guard without crossing the picket line. There- upon, he returned to the Rasmussen truck yard, and was released for the remainder of the day. At that.time Walter Rasmussen told Swallick to see the union officials., early about his union card, that he could use his services next day. At 6:30 a.m. on Friday, July 26, 1957, Paul Swallick went to the office of Local 469, and discussed his situation with Secretary-Treasurer Frank J. Volosin.. He exhibited an identification card showing that he was a member in good stand- ing of sister Local 701, and requested a transfer to Local 469. The secretary told him that Willard Smith (member of Local 469) had requested a hearing on his discharge by Respondent Rasmussen, and would go back to work there if his, contentions about the grievance were right. Volosin further informed Swallick that his application for transfer to Local 469 must be submitted for approval to, the local executive board consisting of the president, vice president, recording secre- tary, secretary-treasurer, and trustees of the local union (constitution, art. XXI, sec. 2). Swallick then requested an interview with President Thomas J. Kelly, was told that Kelly was on vacation, but could be interviewed about 10 a.m. on the following Monday. Swallick then reported for work to Respondent Rasmussen, and told both Walter Rasmussen and Shop Steward Frank Huda that he would. see President Kelly on Monday. Thereupon, Rasmussen and Huda went.into the. office to call Secretary-Treasurer Volosin. Upon their return, Swallick was au- thorized to work that day, but Huda told him to be sure to see Tom Kelly or Pat Reilly on Monday and get his union book straight. Rasmussen then at ap- proximately 8:30 a.m. sent Swallick with a truck to Hayden Chemical Corporation in Fords, N. J., where he worked until 4:30 p.m. At that time Rasmussen told Swallick that he had work for him to do on Monday, and again warned him to, see President Tom Kelly about his union card. After work hours that evening Swallick again went to the union hall and conferred with Secretary Volosin con-- cerning the grievance filed by Willard Smith. At that time Volosin again stated that President Thomas J. Kelly would be present on Monday about 10 a.m. At 9:30 a.m. on `Monday, July 29, 1957, Paul. Swallick went to the office of Local 469 and awaited the arrival of President Thomas J. Kelly.' Kelly entered. his private office for a few minutes, but left before Swallick had an opportunity to see him. Secretary Volosin suggested that he come back about 11:30 a.m. Swallick returned at 10:45 a.m. and waited outside the office until Kelly drove up. He then approached Kelly at his car and inquired whether Secretary Volosin had told him about the Rasmussen case. Kelly said, "Yes, I got that Rasmussen coming down. Tell you the truth, Swallick, my sister's got cancer, and I got to get going any way, right away. I'll see you in a couple of days and everything will be taken care of." Kelly admittedly on that same day called by telephone from Mana-- hawkin, N.J., and told Walter Rasmussen to meet him at the Perth Amboy office of Local 469 at 10:30 a.m. on July 31, 1957, to discuss the Willard Smith case. Rasmussen admittedly received such a telephone call on July 29, 1957, and ac- cepted the appointment to meet Kelly as requested. Rasmussen also told Swallick- that he had made such an appointment. At approximately 10 a.m. on Wednesday, July 31, 1957. both Walter Rasmussen and Paul Swallick appeared at the union hall of Local 469. While President Thomas J. Kelly held a conference upstairs with Walter Rasmussen, Paul Swallick applied to Secretary Volosin for permission to see President Kelly. Volosin- notified Kelly that Swallick was waiting to see him, and Kelly said he would go down to see him when he got time. Thereafter Swallick went upstairs to the room, wherein the conference was in session. Upon his appearance at the door, Presi- dent Kelly said, "What the hell are you doine here? Go down and send Frank Volosin up here." Swallick then waited for Rasmussen until the conference was over to inquire concerning any agreement reached. In reply to his inquiry;, Rasmussen said: "Tom Kelly told me after the cement and concrete, strike is over, we'll see what we can work out. Well, we'll leave it as it, is until the cement and concrete strike is over." i On August 6, 1957, Swallick was paid in full for services rendered, and told that there was no more work available. ^ The cement strike had no relationship to the strike at Okonite Manufacturing Com- pany, and should not be confused therewith. f.8$: DECISIONS OF NATIONAL LABOR RELATIONS BOARD The strike at Okonite came to an end on Sunday, August . 25, 1957.. Swallick immediately called Walter .Rasmussen . by telephone, and said : "Did you hear the; good news ? The strike is over at Okonite." Rasmussen (in effect). replied: "That is good. You better get down to the hall and get yourself straightened out It will be a day or two before they get started again ." In the meantime Rasmussen requested Local 469 to send him a truckdriver . . Representative Emerson sent him a chauffeur named Richard Reed. From the testimony of Walter Rasmussen it is not entirely clear. when this transaction occurred. The testimony and,payroll, records of. Respondent Rasmussen indicate that Richard Reed was hired and went -to work on or about August 21, 1957. At approximately 8:30 a.m. on Monday, August 26, 1955, Paul Swallick went to the Rasmussen yard expecting to resume his work as truckdriver on the Okonite job, but found the new employee (Richard Reed) in charge of the dump truck and leaving the yard for the Okonite plant. At that time Rasmussen told Swallick that Local 469 had sent him another truckdriver, but that he could use him anyway if he would go down to the union hall and get a, clearance to work that .day. Thereupon, Swallick went to the union hall, but did not find either President Thomas J. Kelly or Secretary Frank J. Volosin, because both of them were attending a union convention in Atlantic City. After discussing the matter with .a female office assistant, he left his telephone number to be called when an authorized representative was available . He later had a conversation with Repre- sentative Savino (now deceased), but failed to reach any agreement by reason of Savino's lack of authority to take action in the absence of President Kelly and Secretary Volosin. On Friday, August 30, 1957, Paul Swallick again went to .the union hall to see Kelly and Volosin. After waiting around the office for 15 or 20 minutes he ob- served President Kelly was leaving the premises in his automobile.. Swallick ran up to the moving car and inquired how he stood on the Rasmussen case. Without stopping to discuss the matter, Kelly said: "What Frank Volosin told you, that's -the way it stands." Thereupon, Swallick apparently lost all hope of reaching any agreement with respect to continuation of his employment with Respondent Rasmussen, and on September 3, 1957, . filed a charge against Respondent Union alleging unfair labor practices in violation of Section 8(b)(1)(A ) and (2) of the Act. Subsequently on December 10, 1957, he filed a charge against Respondent" Rasmussen alleging unfair labor practices in violation of " Section 8(a)(1) and ,(3) of the Act. . . - C. Contentions of the Respondents - The foregoing findings primarily from the testimony of - Paul Swallick are- not substantially denied by the Respondents. - Walter Rasmussen (Respondent) testified in substance and contends that: He had no agreement or understanding with Respondent Union concerning the em-. ployment of Paul Swallick other than the provisions contained in the written collective-bargaining agreement, supra, including the union-security clause requiring that all his employees become members of the Union on or after 30 days following the beginning of employment or the effective date of this. agreement, whichever is the later; he never discussed the transfer problem of Paul Swallick with Pres- ident Thomas J. Kelly or anyone else in Respondent Union except Shop Steward Frank Huda; Swallick was laid off on July 26, 1957, because there was no work available for him during the strike at : Okonite ; Swallick was paid in full on August 6 , 1957; and told that there was no more work for him to do, which he "considered tantamount to discharge ; he repeatedly urged Swallick to get his union membership straightened out with. Local 469, and upon his failure to do so was not entitled to a continuation of his employment with Respondent Rasmussen; he needed a driver at the end of -the Okonite ' strike, and called 'upon' Respondent Union to furnish one; Local . 469 sent Richard Reed rather than Paul . Swallick; he was under no further obligations to Swallick, because more than 30 "days had' expired since he began work on July 23 , 1957; he could not reinstate or rehire Swallick because he had not become a member of Local 469 on or after 30 days as required in the contract ; and in .any event he had discharged , this man because he was not a satisfactory employee, talk too much , and he just did not like him, that .is all. - Frank J. Volosin (secretary-treasurer of, Local. 469). testified in substance and contends that : Paul Swallick came to his office several times ' seeking a 'transfer C. RASMUSSEN & SONS 689 to Local 469 as a member in good standing from - sister Local 701; he told Swallick that Willard Smith had been discharged from his job by Rasmussen, had requested a hearing, and would go back to that job if he was right in his grievance con- tentions ; despite the insistence of Swallick he refused to approve immediate transfer, because it was required procedure that applications for transfer be sub- mitted to and approved by the executive board; Swallick exhibited displeasure because his transfer was not approved forthwith, and insisted on seeing President Thomas J. Kelly; he did not discuss the matter of transfer with Respondent Rasmussen, Shop Steward Frank Huda, President Thomas J. Kelly or anyone else except Paul Swallick; he does not transfer a member to Local 469 until he brings in a transfer card from a sister local union showing that he has paid up his dues and is in good standing ; Local 469 does not require employers to hire employees through the union hall and the union-security clause in the contract merely re- quires that the employees become members at the end of 30 days after employ- ment ; the grienvance of Willard Smith would not have prevented the transfer of Swallick to Local 469, and had he brought in a transfer card from Local 701 it would have been processed according to the regular procedure outlined in the constitution; he does not believe any objections would have been raised; he had no knowledge of Rasmussen's request for another truckdriver in the latter part of August until Representative Emerson told him the next day that Richard Reed has been sent to the job; and his office has never in any way demanded or re- quested Respondent Rasmussen not to continue the employment of Paul Swallick. Thomas J. Kelly (president of Local 469) testified in substance and contends that he was absent from the office of Local 469 during the entire month and returned on July 31, 1957; he kept daily contact with his office by telephone, and learned about the discharge of Willard Smith, but did not know that Paul Swallick had been employed by Respondent or that he was seeking a transfer to Local 469; he had known Swallick as a member of the Union for 10 or 12 years and had always been on friendly terms with him; on July 29, 1957, he called Walter Rasmussen by telephone from Manahawkin, N.J., and made an appointment to meet him on July 31 at the union office in Perth Amboy to discuss the grievance of Willard Smith ; immediately after the conference with Rasmussen he was ap- proached by Swallick in the parking lot, but told him that he was very busy and would see him later ; he does not recall having seen Swallick thereafter and did not discuss with him at any time the matter of his transfer to Local 469; and Secretary-Treasurer Frank J. Volosin has full authority to handle complaints, and all top decisions are made by the executive board. Concluding Findings It is clear from all the evidence in this case that on July 26, 1957, the Re- spondent Rasmussen laid -off its employee, Paul Swallick , both by. reason of his failure to obtain' permission to work from Local 469 and because of a strike at Okonite Manufacturing Company, which caused a work stoppage from July 25; 1957, through August 25, 1957. On August 26, 1957, Respondent Rasmussen re- sumed performance of its contract to remove industrial waste from the Okonite premises. Rather than reinstate Paul Swallick in his job of driving the dump truck to haul the Okonite waste and garbage, he requested Local 469 to furnish a driver for that purpose, knowing full well that Paul Swallick had applied for a transfer from Local 701 to Local 469 and was having difficulties in obtaining such transfer by reason of the pending grievance proceedings of former driver Willard Smith. Respondent Union sent its member, Richard Reed, to take over this iob with full knowledge that Swallick was a candidate for transfer from Local 701 to Local 469 in order to continue his employment with C. Rasmussen & Sons. Respondent Rasmussen contends that Swallick: had lost his right to employment by failing to become a member of Local 469 on or after 30 days from the date he was hired on July 23, 1957, although he had worked only 3 days prior to layoff on account of the strike at Okonite . I do not agree. With respect to any employee who has been employed for more than 30 days, the union-security clause contained in aforesaid collective -bargaining agreement only requires the employer to discharge such employee within 7 days after receipt of written notice from a properly authorized official of the Union. It is 505395-59-vol. 122-45 690 DECISIONS OF NATIONAL LABOR,-RELATIONS BOARD admitted that Local 469 never sent such a notice to Respondent- Rasmussen. I am convinced, however, that Local 469 -encouraged Walter Rasmussen to deny em= ployment to Paul Swallick by obstructing and delaying his transfer' from Local 701 to Local 469, notwithstanding article XVII, section 1, of the constitution of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which provides as follows: Section 1. It shall be compulsory upon every local union to accept the transfer card of a member in good standing with any local union of the International Organization, without extra charge or fees, except as provided in the International Constitution, provided, -however, the member seeking to transfer shall comply with all rules and regulations set forth in this Con- stitution respecting transfer; and provided further he shall comply with rules and regulations of the local and its constitution and by-laws. Such union shall accord him opportunity for employment and all other rights and privileges in accordance with the rules and regulations of the local union to which he seeks to transfer. It is admitted that Paul Swallick sufficiently identified himself as a member in good standing of Local 701, and requested Secretary-Treasurer Frank J. Volosin to approve his transfer to Local 469. Section 3, article XVII of the constitution provides in substance that a member seeking a transfer shall make a request in writing of the local union of which he is a member and from which he seeks to transfer for the issuance of a transfer card to him, and shall also apply to the secretary-treasurer of the local union into which he is seeking to transfer for ap- proval of that secretary-treasurer so to transfer. No transfer card shall be issued unless such approval has been obtained in writing attested to by such secretary- treasurer. (Emphasis supplied.) It is, therefore, clear that the failure or refusal of Secretary-Treasurer Frank J. Volosin. to furnish approval in writing of the transfer of Paul Swallick to Local 469 effectively obstructed and prevented the issuance of any transfer card to him by Local 701. By sending another employee (Richard Reed) to replace Swallick, Local 469 either knowingly or unknowingly caused Respondent Rasmussen to deny reinstatement to him at the end of the Okonite strike on August 26, 1957. I am therefore constrained to find that Walter Rasmussen d/b/a C. Rasmussen & Sons (an employer) discriminated in regard to the hire and tenure of employ= ment of Paul Swallick (an employee) to encourage or discourage membership in a labor organization, as alleged in the complaint, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. I further find that Respondent Union caused or attempted to cause said employer to discriminate in violation of Section 8(a)(3) of the Act against Paul Swallick, an employee with respect to whom membershipin Local 469. has been denied on some ground other than his, failure to tender the. periodic dues and initiation fees uniformly required as a condition of acquiring or retaining,. • , membership, thereby restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Finding that the Respondents have engaged in and are engaging in certain unfair labor practices affecting commerce, I shall recommend that they, cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents' have unlawfully discriminated in regard to his hire and tenure of employment, I shall recommend that Respondent Rasmussen offer to -Paul Swallick immediate reinstatement to his former or substantially equivalent position without prejudice to seniority and other rights and privileges; 2 See Chase National Bank, etc., 65 NLRB 827. .'C: RASMUSSEN.& .SONS 691 and that Respondent Rasmussen and Respondent Union jointly and severally make Paul Swallick whole for any loss of pay suffered by reason of the discrimination by the payment to him of a sum- of money equal to the amount he would have earned from the date of his layoff or discharge on July 26, 1957, to the date on which Respondent Rasmussen shall offer him proper reinstatement as herein provided, less net earnings,3 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Company, 344 U.S. 344. Earnings in one particular quarter shall not affect the back-pay liability for any other such period. Due consideration may be given to the fact that during the period from July 26, 1957, through August 26, 1957, Respondent Rasmussen may not have been in a position to provide full- time employment by reason of the strike at Okonite Manufacturing Company, but should have provided work to the extent available according to his hiring agreement with this employee. It will be recommended also that Respondent Rasmussen preserve and make available upon request to the Board or its agents, for examination and reproduc- tion, all personnel reports, timecards, payrolls and social-security accounts, and all other records necessary to analyze, compute., and determine the amounts of back pay and other employment rights and privileges to which the dischargee herein may be entitled by reason of the discrimination against him. Respondent Union shall not be liable for back pay accruing after it shall have notified Respondent Rasmussen in writing that all objections to the employment of Paul Swallick have been withdrawn and that it formally requests his re- instatement. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Walter Rasmussen d/b/a C. Rasmussen & Sons is an employer within the meaning of Sections 2(2) and 8(a) of the. Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. 3. By discriminating in regard. to the hire and tenure of employment of Paul Swallick, both prior to and after the expiration of 30 days from the beginning of his employment, by requiring him to obtain clearance from and become a member of Respondent Union as a condition of employment prior to the 30th day following the beginning of such employment and when he had reasonable grounds for believing that such membership was not available to said employee on the same terms and conditions generally applicable to other members and that such membership was denied for reasons other than the failure of said employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership, the Respondent Walter Rasmussen d/b/a C. Rasmussen & Sons has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By causing or attempting to cause Respondent Walter Rasmussen d/b/a C. Rasmussen & Sons to discriminate in regard to the hire and tenure of employ- ment of Paul Swallick with respect to whom membership by transfer from a sister local union has been denied on grounds other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership, Respondent Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] See Croaaett Lumber Company, 8 NLRB 440, 497-498.