Gordon Electric Co.

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Earl Gordon d/b/a Gordon Electric Company and James E. Reynolds -Local 11, International Brotherhood of Electrical Workers, AFL-CIO and James E. Reynolds. Cases Nos. 21-CA-3007 .and P21-CB-1038. April 23, 1959 DECISION AND ORDER On September 16, 1958, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Gordon Electric Company and the Respondent Local 11, International Brotherhood of Electrical Workers, AFL-CIO, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents Gordon and Local 11 filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent they are consistent with our decision herein. The Trial Examiner found that the Respondent Gordon, by dis- charging or refusing to rehire Reynolds discriminated against him in violation of Section 8 (a) (3) and (1) of the Act and that the Respond- ent Union violated Section 8(b) (2) and (1) (A) by causing such dis- crimination. Because we find, in agreement with the Respondents, that Gordon's business is insufficient to warrant the assertion of juris- diction under the Board's standards,' we do not adopt these findings. It is undisputed that Gordon's operations alone do not satisfy the Board's standards for the assertion of jurisdiction. The Trial Exam- iner, however, justified the assumption of jurisdiction on the ground that at the time of the alleged unfair labor practices Gordon became a member of a multiemployer unit and that, therefore, the commerce facts of the other members of the unit brought him within the jurisdic- tional standards. We have carefully examined the record in the case i Member Jenkins considers himself bound by the majority opinion in Siemens Mailing Service, 122 NLRB 81 (-Member Jenkins concurring specially ), in which he expressed his "disagreement with the use of mechanical monetary standards as a substitute for judicial discretion in meeting the problem of enforcing the Act within the language and scope of the Act." 123 NLRB No. 106. GORDON ELECTRIC COMPANY 863 and are not persuaded that the evidence established that Gordon, by signing the area agreement previously negotiated between the Los Angeles Chapter, National Electrical Contractors Association, Inc., and the Union and his signing the NECA authorization form, thereby indicated an unequivocal intent to be bound in collective bargaining by group, rather than individual, action. We find that, under the particular facts and circumstances of the case, Gordon's conduct amounted, at most, to the adoption of an area contract which is in- sufficient to make an employer part of a multiemployer unit. Accordingly, we shall dismiss the complaint against the Respondents in its entirety. [The Board dismissed the complaint.] CHAIRMAN LEEDOM and MEMBER BEAN took no part in the.considera- tion of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint alleges that Respondent Union, Local 11, International Brother- hood of Electrical Workers, AFL-CIO, demanded on or about February 26, 1958, that Respondent Company, Earl Gordon d/b/a Gordon Electric Company, discharge James E. Reynolds as a condition precedent to executing a collective -bargaining agreement; that Respondent Company on or about February 26 did discharge Reynolds pursuant to said request; and that Respondents have thereby engaged in unfair labor practices , Respondent Company within the meaning of Section 8(a) (1) and (3 ) and Respondent Union within the meaning of Section 8(b)(1)(A) and (2) of the Act. The answers of Respondents deny the commission of any unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Los Angeles, California, on July 28, 1958. All parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing the parties were given an opportunity to argue orally and to file briefs by August 25. Oral argument was waived and briefs have been received from the General Counsel and Respondent Union. Ruling having been reserved on motions to dismiss the complaint for lack of commerce and on the merits, they are hereby denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Earl Gordon d/b/a Gordon Electric Company is an individual engaged in the electric contracting business at Baldwin Park, California. The General Counsel concedes that his 1957 volume of business was approximately $ 14,000, but claims that jurisdiction should be asserted herein on the basis that Respondent Company has designated National Electric Contractors Association, Inc., Los Angeles Chapter, herein called N.E.C.A., a trade association which bargains for electrical contractors in the Los Angeles County area , as his collective-bargaining agent to bargain for him, as part of a multiemployer group . The General Counsel further contends that Respondent Company has agreed to be bound by any contracts negotiated by Respondent Union and N.E.C.A. The record discloses the following: Gordon and Respondent Union's agent, Business Representative LeRoy Devereaux, agreed to enter into a collective-bargaining contract and on February 26, 1958, Gordon appeared at Devereaux's office. He was initially presented with a docu- ment which , save for the respective seals of N .E.C.A. and Respondent Union, 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appears below. It is to be noted that the signatures of all signers except Gordon and Devereaux were previously printed on the form. Los Angeles Chapter International Brotherhood of National Electrical Con- Electrical Workers tractors Association Local Union No. 11 Southeast Corner 24th and 2316 West 7th Street . S. Broadway Los Angeles 57, California Los Angeles 7, California Dunkirk 7-7271 RIchmond 8-5587 INDIVIDUAL MEMBERS SIGNING UNION AGREEMENT **Baldwin Park, California. **2-26-58 Date I hereby authorize the Los Angeles Chapter, National Electrical Contractors Association , to act as my collective -bargaining agent with I.B.E.W. Local Union No. 11 , and hereby agree to be bound by the terms and provisions of any amendments to this agreement agreed to by I.B .E.W. Local Union No. 11 and the N.E.C.A. bargaining representative unless notice of revocation of authorization in writing is given to the N.E.C.A. and. the Union at least one hundred and twenty ( 120) days prior to the expiration date of this agreement. *J. B. SHAMEL .*WEBB GREEN Signed Chairman N.E.C.A. Labor Signed by Union President Negotiating Committee GEORGE E. O'BRIEN *WARREN PENN Signed by Union Business Signed N.E.C.A. Executive Manager Secretary Name of Company Signed by N.E.C.A. Member Address Phone No. **GORDON ELEC Name of Company **EARL GORDON Signed by Non-N .E.C.A. Member **1438 E. Los Angeles St. Address **Edgewood 7-5213 Phone No. Approved by International President I.B.E.W. Unions 5*LEROY DEVEREAUX Local Union 11, I.B.E.W. Bus. Rep. Dist. No. **6 TO BE SIGNED IN TRIPLICATE White Copy to Union Yellow Copy to N.E.C.A. Blue Copy to Employer Gordon asked no questions , expressed no reservations and signed the document, as did Devereaux, and Gordon then signed a contract with Respondent Union. The contract was identical in every respect, including the names of the contracting parties, with a contract previously executed between Respondent Union and N.E.C.A. effective July 1, 1957, wherein Respondent Union recognized N.E.C.A. "as the 'Names which were printed on form as part of original printing. * *Material which was handwritten and placed on form on February 26. GORDON ELECTRIC COMPANY 8,65 bargaining representative for electrical contractors for Los Angeles County, State of California,. for inside wiremen on construction." The record discloses that Respondent Union enjoys contractual relations with ap- proximately 960 electrical contractors in the Los Angeles area ; of these, about 160 belong to N .E.C.A. The practice is and has been for Respondent Union and N.E.C.A. to negotiate a contract effective July 1 of each year Although it is their aim to have a uniform contract in the area for all 960 electrical contractors, Asso- ciation members and nonmembers alike, it is admittedly impractical if not impossible for Respondent Union to obtain 960 signatures when new conditions of employment are negotiated. The device currently utilized for achieving this uniformity of working conditions is the form set forth above and captioned "INDIVIDUAL MEMBERS SIGNING UNION AGREEMENT." This form was devised by both Respondent Union and the N.E.C.A. When a contractor who is not a member of N.E.C.A. signs a union contract he also signs this form whereby he (1) authorizes N.E.C.A. to be his bargaining agent with Respondent Union, and (2) agrees to be bound by any changes in working conditions thereafter negotiated by Respondent Union and the N.E.C.A. As noted, the N.E.C.A. signatures are affixed or printed on these forms which are handled thereafter by Respondent Union. I find that Respondent Union is the agent of N.E.C.A. for the purpose of obtaining additional signatures to this form. As stated, the N.E.C.A. is interested in uniform working conditions . Furthermore, the current form spells out the authority of the N .E.C.A. to represent the individual employers because, according to Assistant Business Manager L. R. McCall of Respondent Union, the N.E.C.A. has informed him that they favor such a disclosure in an effort to persuade so-called independent contractors to become members of N.E.C.A. In sum, pursuant to this procedure , Respondent Union and N.E.C.A. negotiate contracts or changes in working conditions . Respondent Union then notifies the individual employers who have signed the form quoted above of the conditions of employment newly negotiated in their behalf and these are put into effect the follow- ing July 1. In the instant case it is true that the signing of the form was handled by the Respondent Union and Gordon . It is also true, however, that N.E.C.A. had authorized Respondent Union to act in its behalf in this connection and had dis- closed its intent to represent the employer by presigning the form. Gordon did thereafter place into effect changes in working conditions subsequently negotiated by N.E.C.A. and Respondent Union when notified by the latter , thereby further im- plementing the broad bargaining relationship . Indeed Respondent Union has con- ceded herein that this is a situation where an independent contractor "agrees to be bound by terms and conditions negotiated by the major group in the industry" and that the form was devised to make the situation one whereby the independents were tied down to the pattern set by the N.E.C.A. and Respondent Union. Con- sistent with this approach , the form is signed in triplicate with copies to the em- ployer, Respondent Union and the N.E.C.A. While there is evidence that the N.E.C.A. does obtain powers of attorney from members and nonmembers at the time of contract negotiations , this is done in only a small percentage of cases and on a basis which is not disclosed herein. It is further significant that Respondent Union does not bargain separately with an individual contractor, aside from an initial contract perhaps, except where work is of such a nature as to require separate bargaining , a situation not present in this case. Nor does the N.E.C.A. negotiate for a nonmember individually for a separate contract. Respondent Union points to the fact that its grievances with N.E.C.A. members involving contract violations are taken up with the chapter manager of the N.E.C.A., whereas such is not the case with nonmembers who are represented by N.E.C.A. The latter type of grievance is taken up with the "Joint Electrical Industry Com- mittee. " It is interesting to note that the latter group is provided for and set up in the contract signed by Respondent Company and consists of three representatives of the "Employer," i.e., N.E .C.A., and three representatives of Respondent Union. What this amounts to is that in this instance Respondent Union takes up the matter with a board comprised equally of N .E.C.A. members and Respondent Union's designees . This in practical effect is a distinction without a difference. A consideration of the contract signed by Respondent Company presents further evidence of the multiemployer type of bargaining therein established: 50,8889-60-vol . 12 3-5 6 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) The Joint Electrical Industry Committee, described above, is empowered by article I to consider all grievances not resolved within 48 hours by the parties to the contract. (2) In article II of the contract signed by Gordon there is a reference to giving preference to electricians or apprentices previously employed "by Employers of the multi-employer unit in Los Angeles County." (3) Article IV establishes a "Vacation Plan Administration Committee" for the purpose of interpreting and administering vacation plans set up under the contract. This committee consists of three members of the N.E.C.A. and three representatives of Respondent Union. '(4) Article V sets up a "Joint Apprenticeship Committee" consisting of equal members of N.E.C.A. and representatives of the Union. These all support the General Counsel's claim that by signing the form Respondent Company has become a party to an existing areawide collective- bargaining pattern on a multiemployer basis. In Cottage Bakers, 120 NLRB 841, the Board pointed out that "when there is an established pattern of multi-employer bargaining on the basis of which we would assert jurisdiction if the multi-employer unit were involved, we shall also assert jurisdiction over a unit limited to a single employer who is a party to the group bargaining, regardless of the individual commerce figures applicable to that employer." In Santa Clara County Pharmaceutical Association, etc., 114 NLRB 256, the Board pointed out that in cases involving associations and groups of employers the Board would treat all employers as a single enterprise for jurisdictional purposes "where the evidence is clear that the employers unequivocally intend to be bound in collective bargaining by group rather than individual action. Such evidence ap- pears when, for example, the employers participate personally with other employers in joint negotiations, or when they delegate to a joint bargaining representative authority to conduct negotiations on their behalf, and thereafter uniformly adopt the agreements resulting from such negotiations." This precise approach was followed in Electrical Contractors of Troy, 116 NLRB 354. Indeed, the Court of Appeals for the Second Circuit approved the assertion of jurisdiction in a similar situation over an employer, pointing out that "it is unim- portant whether or not the Association existed as a formal entity, so long as it is clear that R. K. [the employer] acted jointly with the other employers in the Association in the negotiation of collective agreements, as the impact upon inter- state commerce would be the same in either case." N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772 (C.A. 2). See also American Publishing Corpora- tion, et al., 121 NLRB 115, and The Evans Pipe Company, et al., 121 NLRB 15. I find that by signing the above-described form and the contract on February 26, 1958, Respondent Company became a party to an existing area pattern of collective bargaining on a multiemployer basis and further promised to follow all changes therein as negotiated by N.E.C.A. in behalf of its members and those whom it repre- sented. While, as will appear below, the conduct attacked by the General Counsel took place almost simultaneously therewith, this is of no assistance to Respondents. The fact is that on February 26 Respondent joined the existing areawide plan of bargaining which had been functioning, according to the contract, for some years, and the conduct carried into February 27. It is not disputed herein that the members of N.E.C.A. who participate in this multiemployer collective bargaining ship goods and perform services outside the State of California valued in excess of $50,000 per annum. I find therefore that the operations of Respondent Company affect commerce and that it would effectuate the purposes of the Act to assert jurisdiction herein. If. THE LABOR ORGANIZATION INVOLVED Local 11, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization admitting to membership the employees of Respondent Company. M. THE UNFAIR LABOR PRACTICES A. Introduction; sequence of events The sole issue is whether Respondent Union caused the discharge of James E. Reynolds by Respondent Company for a reason forbidden under the Act. Earl Gordon is a small electrical contractor who prior to the time material herein had been under contract with Responent Union; this contract was canceled by Respondent Union sometime in 1954 or 1955. After a brief absence from the contracting field, Gordon resumed operations in July of 1957. He contacted Respondent Union soon GORDON ELECTRIC COMPANY 867 thereafter in an effort to obtain a contract, but was refused for the reason, as Gordon admitted, that during the term of the prior contract he failed to live up to one of its provisions . Specifically, this was a failure to pay 1 percent of his gross payroll , as provided by that contract and also the current agreement described below, to the "Local Employees Benefit Board" set up under an agreement between the National Electrical Contractors ' Association and the International Brotherhood of Electrical Workers in 1946. On December 15, 1957, Gordon obtained a contract on a job referred to herein as the Brunswick project and initially handled it alone. On or about January 1, James E. Reynolds, the complainant herein , called upon Gordon and sought em- ployment. Reynolds had never been a member of Respondent and at no time had worked as an apprentice in the field . However Reynolds, a young man , had 3 years of experience in the United States Navy as an Electrician 2d Class. It is undisputed herein that Reynolds did not have the experience or qualifications of a journeyman electrician. . On learning that Reynolds was sorely in need of employment Gordon hired him to perform electrical work at the rate of $2 per hour. While Gordon did not in words tell Reynolds that he would be an "electrician's helper" it is clear and I find that this was Reynolds' precise status. For Reynolds who was unable to perform a journeyman's work unassisted did assist Gordon, the latter a journeyman, in the performance of his duties. The contract thereafter signed on February 26, 1958, between Gordon and Respondent Union established a journeyman 's wage scale of $3.90 per hour and a scale for apprentices commencing at 50 percent of the journeyman's rate. Thus Reynolds was paid slightly in excess of the beginning rate for an apprentice. After several weeks Reynolds was laid off when Gordon temporarily had no use for him. About 2 weeks later, early in February, Reynolds was recalled to work by Gordon. As Gordon testified, the work on the Brunswick job "had developed where we could use him and I rehired him . there was work . . . that the kid could do." This was electrical work as a helper which Reynolds proceeded to perform to Gordon's satisfaction at the same rate of pay previously set by Gordon . I find that Reynold's work was entirely satisfactory in every respect to Gordon; indeed, there is no contention to the contrary by either Respondent. B. Contract negotiations In the first or second week of February , some indirect pressure was exerted on Gordon to obtain a union contract . Representatives of various crafts working on the Brunswick job, including a representative of Respondent Union, called upon Gordon and asked if he had a union contract. Gordon replied that he did not but expressed a willingness to sign one, and Gordon apparently did desire a contract with Respondent Union . Soon thereafter, Gordon received a telephone call from Busi- ness Representative Devereaux of Respondent Union who invited Gordon to visit his office and an appointment was arranged for Friday, February 21. As of that date Gordon had three employees on his payroll, Reynolds and two journeymen who it appears were members of Respondent Union. Gordon met Devereaux as scheduled and in most respects their testimony is in agreement as to what took place. Devereaux told Gordon he had been informed by his assistant that Gordon had returned to the electrical contracting field. His interest was predicated on the fact that previous contracts with Gordon had been canceled as described above and he was concerned that union members were working for a nonunion contractor , Gordon, contrary to union policy. It is clear and I find that Gordon stated he wished to sign a contract and that Devereaux displayed a sam- ple copy to him. Gordon informed Devereaux, as the latter admitted , that he had three employees, two journeymen and a third, Reynolds, whom he described as a helper. At this point there is a conflict in their testimony . According to Gordon, Devereaux stated that Gordon's shop was in a "mess" because his men who were not covered by a union contract were working on a union job together with other union crafts. Devereaux stated that he could not give Gordon a contract until he was "clean" and that Gordon should run his men off the job so that Devereaux could advise the Building Trades Council to cancel a picket or picket line scheduled for Monday morning, February 24. Elsewhere Gordon testified that Devereaux in- structed him to "clean house" and to "get rid of him [Reynolds ]" and to stay off the job until Devereaux informed the Building Trades Council that he, Devereaux, had taken Gordon off the job; he also told him to stay off the job until the contract was signed. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Devereaux admitted that he told Gordon he could not do anything for Reynolds. By this he referred to the fact that under the standard agreement , subsequently signed by Gordon, only two classifications were set up , journeymen and apprentices, and that Reynolds had to fit one of these classifications in order to be covered. This has reference to the fact that article II of the standard agreement later signed by Respondents on February 26 provides that "all workmen, union or otherwise, shall be classified and receive the wage scales as provided under Article III, Section 4, of the Collective Bargaining Agreement ." Furthermore, the latter section establishes wage rates only for foremen, various classifications of journeymen , and apprentices, as well as for welders who receive, journeymen's rates. Gordon further testified that the meeting ended with an agreement that Gordon would shut down the job until the matter could be cleared with the Building Trades Council and that he would return on or about Wednesday, February 26, to sign a contract. Gordon returned to the job site and informed his men that pursuant to his talk with Devereaux he would be closing down. Devereaux denied that he told Gordon on this occasion to shut down operations, to lay off his men, to lay off Reynolds, or to get rid of Reynolds . He admitted, how- ever, that Gordon had told him Reynolds was a helper , and that he, Devereaux, had proceeded to discuss Reynolds' case with Gordon . Devereaux admitted that he told Gordon he could do nothing for Reynolds "insofar as our 'agreement was con- cerned" because, as noted above , Reynolds fell into neither of the classifications set up by the agreement . Moreover, apprentices were obtained only through the apprentice program spelled out in article V of the agreement . He admitted telling Gordon to speak to Reynolds and straighten out the situation if Gordon wanted a contract.' I have credited Gordon's testimony where in conflict with that of Devereaux. It is corroborated in part by the testimony of Reynolds that Gordon returned to the job on February 21 from his meeting with Devereaux and told the three employees that they were being laid off until further notice and until the contract was signed because Devereaux had informed him there would be a picket line if they continued to work. Moreover, Gordon was manifestly an unhappy witness who , desiring and finally obtaining a union contract, would presumably be reluctant to present testimony damaging to Respondent Union.2 As noted, Gordon returned to the job on February 21 and informed his entire crew that they were through working until a contract was signed with Respondent Union. He then proceeded to invite them to work on Saturday and Sunday only and they accepted . He claimed herein that he was not bound to any agreement with Respondent Union until a contract was actually signed and that he wished to finish as much of the work as possible. The men worked on Saturday and Sunday but, pursuant to instructions, did not report for work on Monday , February 24. Indeed, Gordon repeated on Sunday that the men were laid off until further notice. On Monday night, February 24, Gordon , accompanied by his two journeymen, met with Devereaux and Assistant Business Manager L. R. McCall of Local 11; the latter is Devereaux 's superior. McCall testified that Gordon asked him to do what he could to make it possible for Gordon to sign a contract . McCall admitted that the subject of Reynolds' employment was brought up and that he, McCall, told Gordon that "we could not under any circumstances consider the employment of Reynolds under the terms of the agreement except as a journeyman ; that he was free 1 While the sample contract does state that a joint apprenticeship committee consisting of equal numbers of employer and union representatives cooperating with the California Apprenticeship Commission shall be established , it does not appear to provide that only apprentices cleared through that committee shall be employed, although it does provide that apprentices shall be registered with the Union before being put to work. 3 There was a further conflict between Devereaux and Gordon as to whether there was a discussion concerning Gordon operating his business with two partners or as an in- dividual . According to Devereaux , Gordon said that he had two journeymen partners who were old stool friends and financially interested in the business ; Devereaux allegedly replied that a union contract would permit only one partner to work with the tools and that Gordon should straighten this out. Gordon claimed that the subject of a partner- ship was not brought up: that Devereaux knew that he, Gordon, had formerly had a partner ; and that the relationship , as Devereaux knew , was unsatisfactory . Gordon further testified that this partnership had existed during the first 6 months of 1956, approximately 2 years earlier . While I believe that Devereaux may have confused the conversation with a previous one several years before, no resolution is necessary for the topic is not relevant to the basic issues herein. GORDON ELECTRIC COMPANY 869 to hire him as a journeyman . that he must comply with the Apprentice Program in order to be employed at less than journeyman's wages. . Elsewhere McCall testified that he did not say Reynolds could not work but did say "Reynolds could work only as a journeyman on the job under the agreement." Gordon's testimony attributed to McCall a statement that McCall could do noth- ing for Reynolds, presumably in effectuating his appointment as a helper. Gordon also testified that he asked Devereaux "what to do with the kid [Reynolds]" and "they stated they weren't concerned" with him. He asked Devereaux if Reynolds could be "cleared" by Respondent Union and Devereaux replied in the negative'. Devereaux was not specifically questioned concerning this conversation and I credit the testimony of Gordon and McCall, to the extent set forth, as to what took place on this occasion. Here, as well, there is a conflict on the partnership discussion. According to McCall the meeting ended with the issue unresolved as to whether Gordon would operate on an individual basis or as a partnership. According to Gordon, the dis- cussion centered rather on who Gordon would designate as a foreman. It is to be noted that on Thursday, February 26, Gordon did send one of his journeymen, Sheppard, to the Union for a clearance apparently as job foreman. The testimony of Devereaux was not in complete accord with that of McCall on this issue for Devereaux testified that the meeting ended with Gordon announcing that he would operate his business as an individual and had decided to sever his partnership. Here as well I deem it unnecessary to resolve this conflict. On Monday or Tuesday of that week, February 24 or 25, with Respondent Com- pany not working on the Brunswick project, Reynolds telephoned Gordon about further work and Gordon instructed him to report for work on Wednesday, Febru- ary 26, at the regular starting hour of 7 a.m. Reynolds reported as directed but Gordon, as Reynolds testified, did not permit him to start work. He told Reynolds that he was compelled to let him go; that it was not because of his work; and that "It is because of the union." He also stated, "Friday [February 211 I didn't have the contract and you had a job . . . today I am signing the contract and you don't have the job. You can put two and two together." At this point the two journey- men reported for work and apparently were permitted to start work.3 The contract was signed that day and the testimony of Devereaux discloses that the signing took place at his office at approximately 8 a.m. Reynolds uncon- trovertedly testified that he telephoned Devereaux that day, February 26, after his talk with Gordon, and asked if he could return to work for Respondent Company and if he could obtain a "union clearance or union card." Devereaux replied that the union hall handled only journeymen and apprentices; that an apprentice had to be trained under the training program; and that there was a waiting list of applicants for the program. Reynolds conceded that when he again asked Devereaux if he could go to work for Respondent Company, Devereaux replied, "I don't care." Reynolds also asked Devereaux if Gordon would violate the contract if he put him back to work. Devereaux replied, by way of ending the conversation, "in a way he would and in a way he wouldn't." Reynolds returned to the Brunswick job site and met Gordon who had returned after signing the contract. He again asked Gordon for his job and informed him of what Devereaux had told him that morning. Gordon replied that he would take him back only if he was cleared by Respondent Union or had a union card, ex- plaining that he was "over a barrel." Gordon's testimony was to the same effect. On February 27, Reynolds again spoke to Devereaux and stated that he wished a clearance or his job back and threatened to go to the Board. Devereaux told him in effect to do as he pleased but did again bring up the apprenticeship program for Reynolds' consideration. Reynolds concluded that either Devereaux or Gordon was being less than candid with him and later on February 27 again spoke with Gordon. He asked Gordon to visit Devereaux in his, Reynolds', company to straighten out the matter. Gordon refused, stating that if Reynolds showed up with a "union clear- ance or card" he would be put back to work but otherwise not.4 Reynolds was never put back to work and the Brunswick project ended on or about April 16, 1958. The record does not disclose Gordon's present job undertakings. In March, Reynolds did contact Devereaux and applied for admission to the ap- prenticeship program. At the time of the instant hearing, he was still awaiting word as to his acceptance or rejection for the program. Gordon's version was in substantial agreement with that of Reynolds. s This finding is based upon Reynolds' credited testimony. Here, as well, Gordon's testimony was in substantial agreement with that of Reynolds. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Analysis and conclusions (1) Reynolds was employed as an electrician's helper by Respondent Company and was a satisfactory employee so far as his employer was concerned . It is to be noted that he was not a journeyman electrician, was not performing journeyman's work and, although not controlling on the basic issue, this is not a situation where substandard wages were paid to a journeyman under the guise of employing a helper. Indeed, Reynolds was paid slightly in excess of the entry wage scale set up for apprentices. (2) Respondent Company was desirous of signing a contract with Respondent Union and the latter's uniform contract in effect in the Los Angeles area , so far as relevant herein, provided only two job classifications, journeyman and apprentices. Reynolds was not a journeyman and the use of the term "apprentice" in the standard agreement later signed herein either means or is construed to mean by Respondent Union only apprentices registered under a plan set up by the "Joint Apprenticeship Committee" a group composed equally of members of N.E.C.A. and Respondent Union "who shall cooperate with the California Apprenticeship Commission." (3) At a meeting on February 21, Respondent Union instructed Respondent Com- pany to close down operations temporarily to avoid a picket line and further to "get rid" of Reynolds. Business Representative Devereaux admittedly told Gordon that he could do nothing for Reynolds "insofar as our agreement was concerned" and that Gordon should speak to Reynolds who did not fall within the classification of journeyman or apprentice. Gordon complied with the instruction and tem- porarily laid off his men including Reynolds. (4) On February 24, Assistant Business Manager McCall of Respondent Union told Gordon that he could do nothing for Reynolds. When Gordon asked Devereaux what could be done for Reynolds, Devereaux replied that "they weren't concerned" with Reynolds and further refused to clear Reynolds for a job. McCall admitted telling Gordon that under no circumstances would Respondent Union consider the employment of Reynolds except as a journeyman and that Reynolds had to go through the apprenticeship program to be hired at less than journeyman's wages. It is to be noted that Respondent Union was under no illusion that Reynolds was anything other than a helper. (5) On the morning of February 26, Reynolds reported for work pursuant to Gordon's previous instructions and was told by Gordon that he was being released "because of the Union" and that Gordon was signing a union contract as a result of which Reynolds was out of a job. (6) Later that morning Gordon signed a standard union contract with a classi- fication system of journeymen and apprentices. (7) Still later that morning Reynolds attempted to obtain a clearance from Devereaux. The latter told him that the union hall handled only journeymen and apprentices, that an apprentice had to be trained under the training program and that there was a waiting list for apprenticeship training .5 While Devereaux did state that he did not care whether or not Reynolds went to work for Gordon and that Gordon might or might not be violating the contract were he to put Reynolds back to work, I find that Devereaux refused to clear Reynolds for employment on this. occasion. (8) Shortly thereafter on February 26, Gordon told Reynolds that he would take him back into his employ only if he were cleared by Respondent Union or had a union card. This statement was made subsequent to the signing of the contract. (9) On the following day, February 27, Reynolds again asked Devereaux for a clearance, threatening to file a charge with the Board. Devereaux told him to do as he pleased and again presented the apprenticeship program for his consideration. I find that Devereaux's statements on February 27 must logically be evaluated against the background of Respondent Union's position of February 21 and February 24 that Respondent Company should get rid of Reynolds and that nothing could be done for him. I further find that Devereaux, on this occasion, refused to grant Reynolds' request for a clearance to enter the employ of Gordon or resume his status as an employee of Gordon. (10) On the same day, Gordon again told Reynolds that he would put him back to work only if he showed up with a clearance or card from Respondent Union. 5Indeed a release by the Joint Apprenticeship Committee lists the criteria for selecting an apprentice and states that "In Los Angeles, it is our experience that the extent of a person's determination to become an apprentice in the electrical trade can be measured by first requiring him to wait a period of time, and making the process of entrance. into the program comparatively difficult." As noted, Reynolds is still waiting for word that he is accepted or rejected for the program. GORDON ELECTRIC COMPANY 871 I Find that Gordon on this occasion reaffirmed his act of the previous day in denying Reynolds further employment. Respondent Union has raised the point that the conduct complained of herein took place, on the theory of the General Counsel, before the operations of Respond- ent Company became subject to commerce because they preceded the contract sign- ing or joining of the area pattern on Feburary 26. However as demonstrated, the conduct on the part of Respondent Company extended into February 27. While the union pressure preceded the acts by Respondent Company, the fact is that the contract was operative on Feburary 27 when Respondent Company again took action and further, Respondent Union reaffirmed its position on February 27. The foregoing demonstrates that Respondent Company terminated the employ- ment of Reynolds because Respondent Union refused to clear or approve Reynolds for further work. It is immediately apparent that this constitutes the imposition of a higher degree of union security than is permitted under the Act. While the General Counsel has made no attack herein on the classification system as such, the fact is that ^a labor organization may cause an employer to discriminate against an employee pursuant to the operation of a legal union-shop contract only for non-payment of dues or ,initiation fees. Such was not the case here. Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17. Respondent Union has claimed that it only wished Respondent Company to live up to the classification system of the contract, but this cannot constitute a defense, for a private agreement must give way to a statutory command For example, in the so-called "hot cargo" cases, conduct specifically prohibited by the Act is not immunized by the fact that the offending party is attempting to bring about com- pliance with a contractual commitment. Local 1976, United Brotherhood of Carpen- ters, etc. V. N.L.R.B., 357 U.S. 93, and Milk Drivers and Dairy Employees Local Union No. 246, etc. (Mayco, Inc.), 121 NLRB 436. Furthermore, the contract does not specifically provide that apprentices must be hired only through the Joint Ap- prenticeship. Committee. By yielding to the demand to discharge Reynolds, Respondent Company dis- criminated with regard to his hire and tenure of employment, the "natural conse- quence" of which was to encourage union membership and adherence. Radio Offi- cers' Union, etc. v. N.L.R.B., supra. This is demonstrated by the fact that Reynolds went to Respondent Union in connection with entry to the apprenticeship program. That an employer took such action because of economic pressure is no defense. N.L.R.B. v. J. E. McCatron, etc., 216 F. 2d 212 (C.A. 9) cert. denied 348 U.S. 943. I find that by the foregoing conduct (1) Respondent Company has discriminated against employees within the meaning of Section 8(a) (3) of the Act and has thereby interfered with, restrained, and coerced employees in the exercise of rights guar- anteed by Section 7 of the Act within the meaning of Section 8(a)( I) thereof and (2) Respondent Union has caused Respondent Company to discriminate against an employee within the meaning of Section 8(b)(2) of the Act and has thereby re- strained and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act, within the meaning of Section 8 (b) (1) (A) thereof N.L.R.B. v. G. W. Thomas Drayage & Rigging Co., Inc., 206 F. 2d 857 (C.A. 9), and N.L.R.B. v. J. R. Cantrall Company, 201 F 2d 853 (CA. 9). 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 of Respondent Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Union caused Respondent Company to discriminate with respect to the hire and tenure of employment of James E. Reynolds. I shall therefore recommend that Respondent Company offer Reynolds immediate and full reinstatement to his former positon without prejudice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. I shall further recommend that Respondents jointly and severally make him whole for any loss of pay suffered by reason of the discrimination against him. Said loss of pay, based upon earnings which he normally would have earned from the date of the discrimination to the date of the offer of reinstatement , less net earnings, 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. See N.L.R.B. v. Seven-up Bottling Co., 344 U.S. 344. The liability of Respondent Union with respect to back pay shall end 5 days after it serves upon Respondent Company and Reynolds the notice of withdrawal of objections to Reynolds' employment provided hereinafter. See Mark R. Kunkel Plumbing, 119 NLRB 1623. The discharge of Reynolds and the conduct causing it strike at the heart of the rights guaranteed employees by the Act. See N.L.R.B. v. Entwhistle Mfg. Co., 120 F. 2d 532 (C.A. 4). These unfair labor practices are closely related to other types of unfair labor practices abridging the rights guaranteed employees by Section 7 of the Act and prohibited by Section 8(a) (1) and 8(b) (1) (A) of the statute. There is reasonable ground to anticipate that Respondents will infringe upon other rights guar- anteed employees in the future unless appropriately restrained. I shall therefore recommend below an order requiring Respondents to cease and desist from infring- ing in any manner upon the rights guaranteed by Section 7 of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 11, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Earl Gordon d/b/a Gordon Electric Company is an employer within the mean- ing of Section 2(2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of James E. Reynolds, Earl Gordon d/b/a Gordon Electric Company has engaged 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 the rights guaranteed by Section 7 of the Act, Earl Gordon d/b/a Gordon Electric Com- pany has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By causing Earl Gordon d/b/a Gordon Electric Company to discriminate in regard to the hire and tenure of employment of James E. Reynolds in violation of Section 8(a) (3) of the Act, Respondent Union has engaged in unfair labor prac- tices within the meaning of Section 8(b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent Union has engaged 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.] Edison Brothers Stores, Inc., d/b/a Chandler's Shoe Store and Lloyd L. Larson, Petitioner and Retail Clerks International Association, Local 1257, AFL-CIO Edison Brothers Stores, Inc., d /b/a Leed's Shoe Store and Maurice M. Hill, Petitioner and Retail Clerks International Association, Local 1257, AFL-CIO. Cases pros. 36-RD-121 and 36-IUD-123. 1.jn°il 23, 1,959 DECISION AND ORDER Upon petitions duly filed, a consolidated hearing was held before E. G. Struinpf, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 123 NLRB No. 107.