Westwood Plumbers

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arise Riddle would report it to the Employer's vice president . The matter would then be investigated and a decision made as a result of the investigation. As the agreed-upon unit specifically includes garage employees and as the evi- dence does not indicate that Riddle's job is supervisory , the Regional Director recommends that the challenge to his ballot be overruled. Thelma Riddle is an inspector whose job it is to examine bottles for defects. She is the wife of W. W. Riddle, an alleged supervisor . While there may be some doubt about W. W. Riddle's supervisory status, the evidence is clear that Riddle has no stock or other financial investment in the Company. As Thelma Riddle is not employed by her parent or spouse2 and as her job is within the unit agreed upon by the parties , the Regional Director recommends that the challenge to her ballot be overruled. With regard to the remaining challenges-Route Managers E. H. and W. L. Bowling, Production and Maintenance Supervisor W. W. Riddle, and Checker Brice Fonvielle-the Employer has presented evidence tending to show that these persons have no supervisory authority as defined in Section 2(11) of the Act. The Petitioner, on the other hand, presented evidence which, if credited, indicates that the four have supervisory authority . Under the circumstances, it appears that such conflicting testimony can best be resolved on the basis of record testimony. The Regional Director therefore recommends that the ballots of 0. C. Mangum, W. C. Riddle, and Thelma Riddle be opened and counted. If these ballots do not prove , to be determinative , it is further recommended that the Board direct a hear- ing for the purpose of resolving the conflict in evidence concerning E. H. and W. L. Bowling, W. W. Riddle, and Brice Fonvielle. 2 Antierican Steel Buck Corporation, 107 NLRB 554. Westwood Plumbers and Harold W. Deem Plumbers and Steamfitters Local Union 545, AFL-CIO and Harold W. Deem. Cases Nos. 21-CA-2752 and 21-CB-938. December 30, 1958 DECISION AND ORDER On April 4, 1958, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain un- fair 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, the Respondent Union filed exceptions to the Intermediate Report, and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the-hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in the case,'and pursuant to Section 10(c) of the"Sational Labor Relations Act, as. Amended, the .National 122 NLRB No. 91. WESTWOOD PLUMBERS 727 Labor Relations Board hereby' orders that Harry «T.' Bronson, d/b,/a Westwood Plumbers and Culver Plumbers, Los Angeles, California, his officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Encouraging membership in Plumbers and Steamfitters Local Union 545, AFL-CIO, or in any other labor organization of" his employees, by discriminating against employees in violation of Sect tio'n 8(a) (3) of the At, or by any other discriminatory practices. (b) In any like or similar manner, interfering with, restraining, or coercing his employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will ' effectuate the policies of the Act : (a) Make whole Harold W. Deem for any loss of earnings suf- fered in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Offer to Harold W. Deem immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (c) Upon request, make available to the Board or its agents for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of back pay due under the terms of this Order. (d) Post at his shop at Los Angeles, California, copies of the notice attached to the Intermediate Report marked "Appendix A."1 Copies of such notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a repre- sentative of the Employer, be posted immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. (e) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of. the Respondent Union's notice at- tached to the Intermediate Report marked "Appendix B." (f) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order as to what steps the Employer has taken to, comply herewith. :'This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting 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." 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the same considerations, the Board orders that Plumbers and Steamfitters Local Union 545, AFL-CIO, its officers, representa- tives, and agents, shall: 1. Cease and desist from : (a) Causing or attempting to cause the Employer to discriminate against any of his employees because such employees are not mem- bers of the above-named labor organization. (b) Restraining or coercing employees of the Employer in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Harold W. Deem for any loss of pay suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Notify the Employer, in writing, sending a copy to Harold W. Deem, that the Union withdraws its objection to his employment as a plumber, and requests the Employer to offer Deem immediate and full reinstatement to his former or an equivalent position. (c) Post at all its business offices in the Los Angeles, California, area, copies of the notice attached to the Intermediate Report marked "Appendix B."2 Copies of such notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed by a representative of the said Union, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. (d) Mail to the Regional Director signed copies of Appendix B for posting by Respondent Employer, at its Los Angeles, Cali- fornia, shop, as provided above. Copies of said notice, to be fur- nished by the Regional Director, shall, after being duly signed by Respondent Union's representative, be forthwith returned to said Regional Director for such posting. (e) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 2 See footnote 1. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Harold W. Deem, the General Counsel of the National Labor Relations Board issued a consolidated complaint, and notice of hearing therein, on October 1,6, 1957, against Westwood Plumbers and Plumbers and Steam- WESTWOOD PLUMBERS 729 fitters Local Union . 545, AFL-CIO.' The complaint,, in substance, alleged that Westwood had discriminatorily discharged Deem, and that the Union had caused the discharge. SUMMARY JUDGMENT AND MOTION TO VACATE On October 16, 1957, the complaint and notice of hearing herein were duly served on the parties.2 Thereafter the Union duly filed its answer denying that it had committed the unfair labor practices alleged in the complaint . However, Westwood failed to file an answer pursuant to the Rules and Regulations of the Board, and on November 21 counsel for the General Counsel filed with the Regional Director, Twenty-first Region (Los Angeles, California), a motion for summary judgment against Westwood on the ground that Westwood was in default. In due course the motion was referred to the Trial Examiner for a decision. On November 27, the duly designated Trial Examiner herein, granted the General Counsel's motion, and entered a summary judgment against Westwood in accord- ance with the Board's Rules and Regulations and established precedent. The summary judgment found that Westwood was in default; and therefore, as to Westwood, all the allegations of the consolidated complaint were deemed to be admitted as true, and the facts found to be, as stated therein. The judgment also directed that the hearing on the consolidated complaint and the answer of the Union proceed on December 2, as scheduled in the notice of hearing. The judg- ment also stated that in due course the Trial Examiner would issue such Inter- mediate Report and Recommended Order as he deemed appropriate on the basis of the summary judgment. It is embodied herein. Pursuant to the notice aforesaid , a hearing was held before the Trial Examiner on December 2 at Los Angeles, California . At the opening of the hearing counsel for Westwood appeared specially for the purpose of moving to vacate the sum- mary judgment. Counsel for Westwood stated that Harold W. Bronson, owner of Westwood, had no prior experience with the Board, or with its procedures, and that he was unfamiliar with his rights. Counsel stated that Bronson had not con- sulted counsel in the matter until after the summary judgment had been entered, when for the first time he presented the documents to counsel and sought his advice. Counsel stated that those facts constituted the only basis for his motion to vacate the summary judgment. Speaking on the motion, the General Counsel stated that the complaint was served on October 16, and that the period for answer expired on October 26, according to the Rules and Regulations of the Board. On October 31 he noticed that Westwood had not interposed an answer, so he phoned Bronson and reminded him that the Rules and Regulations required that an answer be filed within 10 days. General Counsel told Bronson that he would give the latter an additional few days to answer in the proceedings . Bronson asked the General Counsel to wait, while he located the complaint and other papers which were in his office. When they were found , Bronson and the General Counsel continued their con- versation. Bronson asked for the General Counsel's advice in the matter. The General Counsel told him that most people in a similar position retained a lawyer. Bronson replied that he did not want a lawyer, as that would cost him more than the case was worth, and that he did not wish to spend the time involved in dis- cussing the case with a lawyer. The General Counsel then explained the nature of a respondent's answer as required by the Rules and Regulations . Bronson ordered his secretary to listen on a telephone extension , and record in shorthand the General Counsel's instructions-that the answer was to admit or deny the allegations in every numbered paragraph of the consolidated complaint . Later in the day the General Counsel phoned Bronson again , and informed Bronson and his secretary that the original of the answer had to be signed and sworn to. Counsel for Westwood replied that the General Counsel 's statement of this con- versation was substantially correct , but that Bronson believed that he could come to the hearing personally, and explain his position without prejudice , without in- terposing an answer. The Trial Examiner then denied the motion to vacate the summary judgment, on the ground that no sufficient cause therefor had been shown. Counsel for Westwood thereupon left the hearing and the proceeding continued against the Union. In this Report the Respondent Union is referred to as the Union or Local 545; Westwood Plumbers, as Westwood, and a second company named 'Culver Plumbers, as Culver ; the General Counsel of the Board and his representatives at the hearing, as the General Counsel ; the National Labor Relations Board, as the Board ; and the Labor Management Relations Act of 1947, as amended, as the' Act. ®All dates in this Report are in the year 1957, unless noted otherwise. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All remaining parties were represented thereafter and were afforded opportunity to examine and cross-examine witnesses and to introduce evidence relevant to the issues. The General Counsel argued the issues orally and the Union has pre= sented a brief which has been considered: . From my observation of the' witnesses, and upon the entire record in z the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF WESTWOOD ; THE PLUMBING -HEATING AND PIPING EMPLOYERS COUNCIL It was stipulated by the parties, and I find, that Harry W. Bronson is the owner and proprietor of the company known by the firm name of Westwood Plumbers. The company has its principal place of business in Los Angeles, California, where it is engaged in the business of selling, installing, and repairing plumbing, heating, and piping equipment. Westwood, at all times pertinent hereto, was a member of Plumbing-Heating and Piping Employers Council of Southern California, Inc., a California corpora- tion composed of employer contractors in the plumbing, heating, and piping indus- try. Through designated representatives Westwood and other members of the Council participate in the negotiation, execution, and administration of collective- bargaining agreements with the Union and other labor organizations. The members of the Council, in the aggregate, receive goods and materials from points outside the State of California valued in excess of $1,000,000 per year, and furnish goods and services valued in excess of $100,000 per year to enterprises which produce or handle goods and ship such goods outside the State of California, or which perform services outside the State of California valued in excess of $50,000 per year. I find that the Council, and its member Westwood, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was stipulated at the hearing and I find, that the Union is a labor organiza= tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background; undisputed points 1. The relationship of Westwood and Culver In addition to Westwood and the Council, there is another entity directly in- volved in this case. It is undisputed that Bronson is the proprietor of Westwood, and that his foreman at Westwood is Ron Miller, who is a member of the Union. Prior to July 1, Miller, as foreman for Westwood, supervised a force of approxi- mately three or four plumbers, who were on the Westwood payroll. These men were Jasper Rodewald, Robert Dale, and the Charging Party, Harold W. Deem. It is undisputed that Miller, Rodewald, and Day were members in good standing of the Union, and that all of these men worked out of the Westwood plumbing shop on Pico Avenue, Los Angeles. However, Bronson was a partner in, and coowner of, another plumbing business, known as Culver Plumbers. Culver maintained a small office on Venice Avenue, in the Culver City section of Los Angeles. Culver, in reality, was simply another name for Bronson, as that business consisted of a telephone and answering service. It is undisputed that prior to July 1, all orders for plumbing work received by Culver were immediately performed by the Westwood plumbers operating with Westwood facilities. Culver had no shop, no trucks, no tools or equipment, no supplies of plumbing parts, fixtures, or pipes, and no employees. Any bookkeep- ing or clerical services necessary to the Culver operation, were performed by Westwood. In Culver, Bronson had a partner-Ron Miller, his foreman at Westwood. And, as will appear, hereafter, Culver had another asset which in time proved to be valuable-Culver was not a member of the Council, and had no contractual rela- tionship with the' Union, prior to the strike of the Union, which will be described hereafter. It 'is undisputed also, that _ prior ' to the strike the' number of orders received by Culver was negligible, in'comparison with' the business of Westwood. Upon all the- evidence, I, find that Westwood and Culver constitute a single ein' ployer within the meaning ofrthe' Act: WESTWOOD PLUMBERS 2. The strike 731 At the . hearing, counsel stipulated that on July 1 the Union began a strike against the members of the Council over contract terms then being negotiated, and'that.until August 15 , there was no contract in effect between the Union and the Council. It was also stipulated that the strike was settled on August 15; the terms of the settlement being ratified by the Union on August 16 and by the Council on August 17. Work of the employees and the companies was resumed on August 19, and the new contract between the Council and the Union was actu- ally signed on September 27. It was stipulated at the hearing that the Union-Council contract, which expired on July 1, contained a union-shop provision, as did the new contract between the parties. In this connection, however, it should be noted that during the period July 1-August 15, there was no contract in effect between the Council and the Union. The Culver-Union Contract It is likewise undisputed that Culver, during the strike, on July 16, executed a contract with the Union, under circumstances which will be related hereafter. The Correspondence as to Deem's Discharge It is undisputed that Deem, the Charging Party herein, and an employee of Westwood, was discharged by Bronson on July 25. At the time of his discharge Bronson gave Deem the following letter: JULY 25, 1957. MR. HAROLD DEEM Los Angeles, Calif. DEAR MR. DEEM: Because you are not at present affiliated with the plumb- er's union, I am forced to terminate your services. I regret to do so, because your work here has been more than satisfactory. (Signed) Harry W. Bronson, HARRY W. BRONSON, WESTWOOD PLUMBERS. It is likewise undisputed that in connection with Deem's discharge, Bronson wrote the following letter to the Union. PLUMBERS & FITTERS LOCAL #545 Santa Monica, Calif. JULY 27, 1957. GENTLEMEN: A per the telephone conversation with you on July 25, this is to confirm that Mr. Harold Deem is no longer in our employ. There are no employees with this firm who are working in the capacity as plumbers. As you are aware, we are also engaged in Appliances and Appliance Repair business in which we are operating as in the past. Very truly yours, (Signed) HARRY W. BRONSON, WESTWOOD PLUMBERS. [Emphasis supplied.] B. The testimony Harold W. Deem testified that in 1948 he joined the Glendale, California, local of the Union . During 1950 he took out a clearance card from the Glendale local and sought employment at Las Vegas, Nevada . However, the Las Vegas local would not accept clearance cards, so he finally obtained clearance in Local 668 of the Union at Boulder City, Nevada . Having obtained clearance , he went back to Las Vegas but his clearance card was refused by that local . He returned to Glen- dale in May of 1955 , and found that the Glendale local had moved to Burbank, California, while he was in Nevada . When he went to the Glendale local he was told that the Local would not take clearance cards. However, the union official in charge advised him to go to Local 78 of the Union , which is in downtown Los Angeles . That local sent him to Long Beach. Long Beach, in turn , sent him to Santa Ana where he obtained some employment , but without obtaining a clear- ance card . At Santa Ana he was employed on a work permit for which he paid $4.75. Finally, without either help or clearance from the Union, he obtained work with Westwood.' Shortly thereafter he saw an ad in a newspaper saying that Clayton Plumbers ," another employer, needed men . He went to Clayton Plumbers, who sent him to Local 545, the Union herein. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This was his first contact with Local 545.. He did not apply for clearance to Local 545, but he was able to obtain a work permit, allowing him to work for Clayton, for which he paid $10. He worked for Clayton about 3 weeks, but dur- ing this time he received repeated calls from Bronson who wanted him to come back to Westwood. He finally consented, and went back. to work for Westwood. While there employed, Thomas H. Conn, business manager of Local 545, ap- proached him at Westwood, and asked him how it came about that he was working for Westwood, when he had been issued a permit to work for Clayton Plumbers. Deem explained that he had. only worked for Clayton Plumbers about 3 weeks, and that he had returned to his original job at Westwood. Conn said that Deem was not permitted to move around like that, and that Conn would be forced to file an injunction against Deem, if he continued to work. A day or two later Deem went to the union hall and spoke to Conn who gave him a slip directed to Wes Young, the financial secretary of the Union. Young told Deem that he would be required to appear before the executive board of the Union before he could work in the jurisdiction of Local 545. Young gave Deem a card which constituted permission to work at Westwood Plumbers,. until such time as Deem could appear before the executive board "to clear in that local, or get straightened out with the Local." On that day, when Deem returned to Westwood, Bronson asked him if he was a member of the Union. Deem replied that he had a card in Local 668, Boulder City, Nevada, but that he was not cleared in California. Bronson replied that was all he wanted to know-that Deem was a union member. At that time, Deem was 2 months in arrears in the payment of his dues to Local 668. Usually he paid his dues every 6 months and had done that for the past couple of years. Shortly thereafter he stopped paying dues to Local 668. He did not go before the executive board as then planned, because the strike, mentioned previously, started on July 1. The Strike Activity From Deem's testimony, it is clear that after the commencement of the strike Westwood's operations were continued, with most of the work being performed by Bronson and Deem. Miller, Rodewald, and Dale went out on strike. Deem's employment was somewhat covert, with Bronson referring plumbing jobs to Deem over the phone at Deem's home. Operating in that manner Deem went to the Westwood shop only occasionally. In approximately the second week of the strike on one of his visits to the shop he encountered two union men. They asked him if he was a union member and he answered that he was not. On a second occasion a man, whom he later learned was named Sharpe, approached Deem at an apartment house where he was making an emergency repair. Sharpe asked if he was working for Westwood, and Deem replied that he was. Sharpe then told Deem that he was from Local 545, and that he was a member of the strike committee. There were two other men with Sharpe on this occasion. A few days later Deem encountered the same men at another job. On this day one of the men took his photograph. Meanwhile, Bronson had taken steps to resume full-scale plumbing operations. Bronson testified that on July 15, he and Miller went to the union office and conferred with Conn, the business agent. Bronson told Conn that Culver was. not affiliated with the Council, was an independent company, and that he desired to sign a contract with the Union so that Culver could operate, despite the strike. Apparently this was satisfactory to the Union. On the next day Conn and Miller executed a contract, covering Culver's operation. It is undisputed that immediately upon the execution of this agreement, Miller, Rodewald, and Dale resumed work, as employees of Culver, and these men thereafter worked on both Westwood and Culver orders, regardless of the strike. Deem, however, was not transferred to Culver. He continued to work covertly for Westwood, as directed by Bronson. This situation soon attracted the attention of the strike committee. Deem testi- fied that on approximately July 18, Miller came to his home and requested Deem to accompany him to the union hall. Miller explained that he and the union plumbers, then ostensibly working for Culver, had been called before the strike committee on the charge that they were working with a nonunion plumber, Deem. Miller wanted Deem to explain to the strike committee that he was working for Westwood. At the union hall, Miller and Deem met with Sharpe, previously mentioned, the man who had photographed Deem, and several other men who comprised the strike committee, and Young, the financial secretary of the Union. In the course of the meeting Deem learned for the'first time of the contract between the Union and Culver, and verified that Miller, Rodewald, and Dale were charged with work- WESTWOOD PLUMBERS' 733 ing" with a nonunion man, himself. Miller explained that he and the union plumb- ers were working for. Culver, and not working with Deem, who was employed by Westwood. Deem corroborated Miller's statement that he was working for West- wood. This explanation apparently was accepted by the union officials as sufficient to clear the union men, but it had no such advantage for Deem. As he left the meeting, he heard Young say that Deem would not be allowed to appear before the executive board, or be reinstated in the Union, as the Union regarded Deem as a strikebreaker, and that the Union could fine any union man $100 for working with a nonunion man. After he appeared before the strike committee, Bronson told Deem not to come to the Westwood shop any more and to confine his jobs to those Bronson referred to him at his home. Thereafter, Deem had frequent conversations with Bronson on the. phone, but he received fewer jobs, and finally his jobs stopped altogether. On July 25 Deem sought out Bronson to try to pin him down, as to his pros- pects. He asked Bronson what he was to do, he either had to have more jobs, or look elsewhere for work. Bronson replied that Miller, Rodewald, and Dale had been in trouble with the Union over working with Deem, and that he had had to write a letter to the Union stating that he had terminated Deem. Deem asked if that meant he was terminated. Bronson replied that he was, until the strike was settled. Bronson further explained that he was forced to terminate Deem, because Rodewald, who had been appointed union steward, had told Bron- son that he and the other men could not work with Deem under the union rules. Deem then told Bronson that he would like a letter of termination, similar to the letter Bronson had written the Union. Bronson complied with Deem's request and gave him the letter previously set forth. On August 1, Deem filed charges with the Board against Westwood and the Union. After he was terminated, Deem called Conn, the business agent of the Union, on the telephone. After some conversation, Conn said that to be reinstated in the Union Deem would have to pay his initiation fee and back dues, a sum around $175. Deem told Conn that he should have been allowed to remain at Westwood, and that the Union should not have forced Bronson to discharge him. Conn denied that the Union had forced Bronson to discharge Deem. Deem then re- minded Conn of the citations which were issued to Miller, Rodewald, and Dale. Conn said that he would not pull the men off the job; that he did not need to; if they were assessed $100 for working with him, they would quit the job, rather than pay the fine. Conn advised Deem to come to the union hall, pay his initia- tion fee and arrearages of dues, and clear into the Local. Conn said if he would do that, he would send Deem to another job. A few days after August 20, 1957, Deem received a copy of a letter from the Union directed to Bronson. This letter reads as follows: DEAR SiR: This is to notify you that the undersigned Local Union has no objection to Harold W. Deem being employed by you, subject to all of the terms and conditions of the Collective Bargaining Agreement between your firm and District Council #16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Very truly yours, [Emphasis supplied.] (Signed ) T. H. CoNN, Business Manager. A copy of this letter was also sent to Irving Helbling, the field examiner assigned to investigate the merits of Deem's charge. After he received this letter, Deem again phoned Conn and asked him if the letter meant he could go back to work for Westwood Plumbers or Culver Plumbers. Conn told him it meant with either company, as they both understood that it was the same job. The General Counsel called Harry W. Bronson as a witness, but he appeared to be extremely evasive, with the result that the General Counsel finished his examination of Bronson under Rule 43(b), treating Bronson as a hostile witness. Bronson did not impress the Trial Examiner favorably. He seemed to be without candor or frankness, and keenly apprehensive that he might say something which might offend the Union. At one point, the gist of his testimony was that he had discharged Deem on his own initiative, without any inducement or encouragement to do so by the Union. However, some testimony shedding a different light on the situation was elicited .from Bronson. He said that Young, the financial secretary of the Union, called 734 DECISIONS OF,NATIONAL :LABOR' RELATIONS BOARD -him in the early days of Deem's employment , and told Bronson that Deem was in arrears in his dues to the Union. Bronson told Young he would convey this information to Deem, and tell him to get straightened out. A short time there- after, Young again called Bronson. On this occasion, Bronson told Young that Deem was no longer employed by Bronson. This was the truth, as at that time Deem was working at Clayton Plumbers. When the strike occurred, all of Westwood's plumbers went out on strike, except Deem. Bronson had a talk with Deem, and it was decided that Deem would work during the strike. Thereafter, Deem and Bronson performed as much of the work coming to Westwood and Culver as two plumbers could perform. Deem drove a Westwood truck, but one which had no name on it, and he received his orders from Bronson, over the telephone at his home. In that way, Bronson and Deem kept Deem's visits to the shop at a minimum. Bronson said that in the early days of the strike, he noticed that there were several men stationed at the shop. One of these was Bernard Sharpe and another was Bill Seitz, both striking plumbers. On one occasion, Sharpe asked Bronson who the fellow was "that calls himself a free-lance plumber." At that moment Bronson received a telephone call, so he did not answer Sharpe's question. On another occasion, Bronson saw these men and asked them why they were hanging around the shop. They said that they were on strike, and that they were just checking on the shop. As soon as he could, Bronson phoned Deem, at a cus- tomer's home where Deem was performing some emergency work. Bronson told Deem that he had better not come into the shop, as the strikers were watching the shop. Deem told Bronson that his warning came too late, as a group of strikers had taken a photograph of Deem that morning. Bronson cautioned Deem .not to come into the shop. Bronson also testified to a conversation with Rodewald around July 20, at the .shop. On this occasion, Rodewald told Bronson that he had been appointed steward by the strike committee and he couldn't work for Bronson any longer if Deem continued to work for him. Bronson testified that on this occasion he told Rodewald, "This all ties in together ... Mr. Deem will have to be laid off." After he received this message through Rodewald, Bronson informed Deem that he would have to lay him off, and relayed to Deem what Rodewald had told him. Deem requested a letter of termination, so he gave Deem the letter previously set forth. When he was examined as to the tenor of the letter which he had sent the Union, Bronson denied that Conn or any other official of the Union had requested or induced him to discharge Deem. He said that writing this letter was his own idea, and that he did it voluntarily. Casper A. Rodewald also was called as a witness by the General Counsel. His testimony was marked by a conspicuous loss of memory, and by extreme vague- ness and evasiveness. When he was asked if he had appeared before the union ,strike committee, he testified that he was present but that he didn't "really know whether they were the so-called strike committee or what." He also could not remember who the men were who were in this group. Rodewald admitted that in the course of his conversation with the strike committee that they asked him the names of the men who were working with him, and that he mentioned Deem's name, and that one of the men told him that Deem was .not a member of the Union in good standing. Rodewald also said that in the course of this meeting some one in this group said that he was to be the steward at Culver Plumbers, but he did not remember who told him that. After further examination Rode- -wald said that "a couple of the boys" at this meeting said that they were making him the steward. Shortly thereafter he talked to Bronson, telling him that he was the steward and that Bronson should straighten out the matter with he Union, .referring to Deem's employment. Rodewald also told Bronson that Bronson had a contract with the Union and that Bronson should live up to it. Rodewald testi- fied that he did not tell Bronson that the men, including himself, could not work for Bronson if Deem continued to work for him. However, Rodewald said that he might have told Bronson that the men would be subject to a fine under the Union's bylaws for working with a nonunion plumber. Rodewald also said that, at that time, it was his understanding that the Union had a rule that a man could be fined for working with a nonunion man. On cross-examination Rodewald denied that he told Bronson that he should have only union men working on the job, and denied that he told Bronson that if he didn't get rid of Deem that he would walk off the job. Thomas H. Conn. the business manager of the Union, testified for the defense. 'In. general he denied that the Union had induced or caused the discharge of Deem WESTWOOD PLUMBERS 735 by Bronson. He said that he never requested the discharge of Deem, - nor had he told anyone that he could not prevent the men walking off the job, if Deem was employed. He testified that around July 24, Bronson phoned him and said that he wanted Conn to know that he had discharged Deem, and that Westwood was not oper- ating. Conn repied that the discharge was Bronson's idea solely. Bronson agreed, and said he- would send Conn a letter to confirm the substance of the conversation. Conn testified that during the strike there existed a strike committee, whose func- tion it was to divide up the Union's territory, and see to it that no other craft performed plumbing work. This committee was composed of rank-and-file mem- bers, and had no other powers or duties. Sharpe, mentioned previously, was a member of the committee. Conn said that only he could appoint a steward for any plumbing shop, and that usually no steward was appointed for shops with less than 15 to 20 employees. Conn said that the union constitution prohibits members from working with nonmembers , and provides for a fine, if members violate the prohibition. The above is not a complete or exhaustive narrative of the testimony, most of which deals with conversations between the witnesses, different versions of the same conversations, or denials and counterdenials. Suffice it to say, that the above is a summary of the main events of the controversy, which are obscured to some extent by the lack of candor of witnesses Bronson and Rodewald. Both of these men appeared apprehensive of offending the Union. They appeared unwilling to testify, and having testified to one effect, they contradicted themselves, or modified their testimony shortly thereafter. Deem's testimony, in contrast, was forthright and straightforward. After a consideration of all the evidence, I credit Deem's testimony, in its entirety, and I accept such portions of the testimony of Bronson and Rodewald as corroborate the testimony of Deem. In view of all the evidence, I do not credit Conn's testimony to the effect that he did not request Deem's dis- charge. I credit his testimony only to the extent it is consistent with the findings hereafter expressed. Concluding Findings By virtue of the summary judgment, the allegations of the complaint charging Westwood Plumbers with the discriminatory discharge of Deem are deemed to be admitted as true, and the facts found to be as stated therein. It follows therefore, that Westwood violated the Act, as alleged in the complaint. The evidence ad- duced at the hearing, especially the testimony of Bronson, confirms the correctness of the summary judgment. In this posture of the case, one question remains for resolution-did the Union cause Bronson to discharge Deem, and thereby violate Section 8(b) (1) (A) and (2) of the Act? The answer to this question is not as readily apparent as it might be, because of the testimony of Rodewald, Conn, and Bronson. Rodewald and Conn each stated he did not request the discharge of Deem. Bronson, too, testified to that general proposition, but in other testimony he corroborated much of Deem' s testi- mony as to the sequence of events leading up to Deem's discharge. I am con- vinced that Rodewald, Conn, and Bronson have not been completely honest or frank in their testimony; that because of their desire to exculpate the Union they have withheld testimony damaging to the Union. In consequence, in this record there is no direct evidence of any request or demand by the Union that Deem be fired. Yet, after considering all the evidence, I am convinced that the Union caused Deem's discharge, if not by a direct request or demand, at the least by a course of conduct that created such circumstances, and exerted such pressures on Bronson, that he was caused to fire Deem. This pressure on Bronson grew out of the Union's special attention to Deem's employment, from its beginning to its end. This pressure began with Young's phone calls to Bronson in the early days of Deem's employment, in which Young urged Bronson to get Deem straightened out. This pressure increased in the early days of the strike, with the surveillance of the shop, and the interrogation and photographing -of Deem by members of the strike committee. All of this brought home to Bronson the knowledge that Deem's nonunion status was not satisfactory to the Union. Of course, Bronson wanted to continue his business without interruption during the strike, and he thought he had achieved that purpose when he executed the Culver-Union contract. That agreement. constitutes a unique arrangement, for by it the Union permitted Bronson, wearing his Culver hat, to be actively engaged in performing struck work, while ostensibly it conducted a strike against Bronson, wearing his Westwood hat. Agreements such as this, whereby a union gives to 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one employer ' a secret privilege or concession which is denied other employers, have earned the name of "Sweetheart Contract." However, the affectionate rela- tionship of the Union and Bronson was disturbed by the continued presence of the unwanted stepchild, Deem. Upon'the execution of the Union-Culver arrange- ment, all the employees of Westwood were transferred to Culver, except Deem, and when Deem performed a few jobs for Westwood, Miller and the union men were cited to appear before the strike committee on the charge that they were working with a nonunion man, Deem. This action of , the Union undoubtedly convinced Bronson that Deem constituted more of a hindrance than a help to his operations, and when Rodewald told Bronson that he was the steward in the operation, and that he and the other union men could not work with Deem, Bron- son bowed to the implicit demand in that statement, and fired Deem. The instrument used by the Union to cause the discharge of Deem was a provi- sion of the Union's bylaws which admittedly provided that the executive board of the Union could fine any member who worked with a nonunion plumber. This provision generated the pressure, which was first exerted upon the men, and through them upon Bronson, with the result that Bronson discharged Deem, When the Union notified Bronson through Rodewald that the union men would not work with Deem, the Union thereupon imposed closed-shop conditions on both West- wood and Culver, and effectively caused the discharge of Deem. However, there is a second aspect of the testimony which warrants most care- ful examination . Bronson and Conn both testified that in arriving at the "Sweet- heart Contract" between Culver and the Union, Deem's employment was not con- sidered or discussed by the parties, although Deem's strikebreaking employment was, or should have been, known to both the parties at that time. Both Bronson and Conn also testified that in their telephone conversation on July 25, neither party referred to Deem's employment or its termination. Yet, Deem's termination was of such importance to the parties that on July 27, Bronson wrote a letter to Conn reading, "As per the telephone conversation with you on July 25, this is to confirm that Mr. Harold Deem is no longer in our employ." This letter, writ- ten close to the time of the discharge, impeaches the testimony of Conn and Bronson that they were not concerned with the continued employment of Deem. On the basis of this letter, the course of conduct of the parties as portrayed in the undisputed evidence, and the credited testimony of Deem, I find that on or prior to July 25 Conn requested Bronson to discharge Deem, and that pursuant to that request Bronson discharged Deem, and by his letter of July 27 confirmed his compliance with the Union's request. Therefore, upon all the evidence, I find that the Union caused Westwood to discharge Deem from its employment on July 25, 1957, and has caused Westwood to refuse to reinstate him to employment since that date, all because Deem was not and is not a member of the Union in good standing, thereby violating Section 8(b)(1)(A) and (2 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union and Harry W. Bronson d/b/a Westwood Plumbers and Culver Plumbers, set forth in section III, above, which occurred in connection with Westwood's operations set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union and Westwood engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that: (1) from July 25, 1957, Westwood has discriminated against Harold W. Deem, in his hire, tenure, terms, and conditions of employment; (2) such conduct by Westwood encouraged membership in the Union and interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act; and (3) the Union engaged in unfair labor practices by causing Westwood to so discriminate, thereby restraining employees in the exercise of rights guaran- teed by the Act. It will be recommended, therefore, that Harry W. Bronson, d/b/a Westwood Plumbers and Culver Plumbers, offer to Harold W. Deem imme- diate and full reinstatement to his former or substantially equivalent position with- out prejudice to his other rights and privileges; and the Union notify Harry W. Bronson, d/b,/a Westwood Plumbers and Culver Plumbers, in writing, and furnish a copy of said notification to Deem, that it has withdrawn its objection to his WESTWOOD PLUMBERS 737 employment as a plumber at his shop in Los Angeles,, California, and request the above-named Employer 3 to offer Deem full and immediate reinstatement to his former or equivalent position. Having found that Harry W. Bronson, d/b/a Westwood Plumbers and Culver Plumbers, and the Union were jointly responsible for the discrimination in the hire and tenure of employment of Deem, it will be recommended that .the Em- ployer and the Union, jointly and severally, make Harold W. Deem whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from July 25, 1957, until his reinstatement as ordered above, less his net earnings during this period. The loss of earnings will be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Employer be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of earnings due. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Plumbers and Steamfitters Local Union 545, AFL-CIO, is a labor organiza- tion, within the meaning of Section 2(5) of the Act, which admits to membership employees of the Employer. 2. Harry W. Bronson, d/b/a Westwood Plumbers and Culver Plumbers, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the terms and conditions of employment of Harold W. Deem, thereby encouraging membership in the Union, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By causing the Employer to discriminate against employees in violation of Section 8(a)(3) of the Act, the Union has engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 6. By restraining- and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 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.] 8 The term Employer, used In this section of the Report, refers to Harry W. Bronson, both as Westwood and 'Culver, since it has been found that these are all designations of the single employer, Harry W. Bronson. The evidence indicates that all employees of Westwood were transferred to Culver, after July 16. If Bronson is no longer conducting business under the name and style of Westwood, this provision contemplates that Deem will be reinstated at Culver, if that firm is operating, or by Bronson, if he Is operating in his own name, or under any other name. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT encourage membership in Plumbers and Steamfitters Local Union 545, AFL-CIO, by discriminating in regard to hire or tenure of em- ployment or any terms or conditions of employment of our employees because they are not members of the above-named Union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, except to the extent that such right may be affected by an 505395-59---vol. 122-48 138 DECISIO&S OF NATIONAL LABOR- RI ATIONS BOARD agreement - requiring membership in. a labor organization as a, condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer to Harold W. Deem immediate and full reinstatement to, his former or substantially equivalent position, without prejudice to any seniority, or other rights and privileges, previously enjoyed and we will make said em- ployee -whole for any loss of earnings suffered as a result of the ditlcrimina- tion against him. All our employees are free to become, to remain, or to refrain from, becoming, .or remaining, members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity -with Section 8(a)(3) of the Act, as amended. HARRY W. BRONSON D/B/A WESTWOOD PLUMBERS, CULVER PLUMBERS, 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 OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF PLUMBERS AND STEAMFITTERS LOCAL UNION 545, AFL-CIO Pursuant to the Recommendations of a Trial Examiner of the National Labor -.Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Harry W. Bronson, d/b/a West- wood Plumbers , Culver Plumbers, to discriminate against employees in regard to their hire or tenure of employment, or any term or condition of employ- ment in violation of Section 8(a)(3) of the Act, as amended. WE WILL NOT in any manner restrain or coerce employees of any employer in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. WE WILL notify the above-named Employer, in writing, and send Harold W. Deem a copy, that we withdraw our objections to his employment as a plumber, and request that he be reinstated to his former or an, equivalent position. WE WILL make Harold W. Deem whole for any loss of pay suffered be- cause of our discrimination against him. PLUMBERS 4ND STEAMFITTERS LOCAL UNION 545, AFL-CIO,. Labor Organization. ':Dated------------------- By------------------==----------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. West Virginia Pulp and Paper Company and United Paper- makers and Paperworkers, AFL-C10.1 Cases Nos. 5-R-1624, 5-R-1625,5-R-1631,5-R-1632, and 5-RC-369. December 30,1958 DECISION AND AMENDMENT OF CERTIFICATIONS The Union is the certified bargaining representative of the pro- ,Auction and. maintenance employees at the Employer's Covington, i The ease caption reflects the current. name of the certified union. 122 NLRB No. 86.