The Lennox-Haldeman Co.

THE LENNOX-HALDEMAN CO. 369 of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment , unless and until said Respondent Union shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among said employees. Finally, in view of the plainly demonstrated intent on the part of both Respondents to deprive employees of their guaranteed rights under the Act, it will be recom- mended that they cease and desist from in any manner infringing upon said rights. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Hatters, Cap & Millinery Workers International Union , AFL-CIO and Local 144, Service, Production and Maintenance Workers, Independent, are labor organizations within the meaning of Section 2(5) of the Act. 2. By contributing support to Local 144, Service, Production and Maintenance Workers, Independent , the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By discriminating in regard to the hire and tenure of employment and other terms and conditions of employment of employees , thereby encouraging membership in a labor organization, the Respondent 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 by Section 7 of the Act, the Respondent 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 and attempting to cause the Respondent Employer to discriminate against employees within the meaning of Section 8(a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Secton 8(b)(2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent 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 unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Lennox-Haldeman Co. and Richard Logan International Hod Carriers, Building & Common Laborers of America, Local No. 310, AFL-CIO and Richard Logan. Cases Nos. 8-CA-1822 and 8-CB-355. April 25, 1960 DECISION AND ORDER On December 10, 1959, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed as to these allegations. Thereafter the Respondents filed exceptions to portions of the Inter- mediate Report, and supporting briefs. 127 NLRB No. 49. 560940-61-vol. 127-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and the briefs, and hereby adopts the findings,2 conclusions,3 and recommendations 4 of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent The Lennox-Haldeman Company, Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in International Hod Carriers, Building & Common Laborers of America, Local 310, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate or reemploy Richard Logan, or any other employee or applicant for employment, because of his failure to secure membership in, or a work permit from, the above-named labor organization, or any other labor organization, or in any other manner discriminating against them, or any of them, in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 1Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins , and Fanning] 2 The Respondents except to the Trial Examiner 's findings crediting the testimony of complainant Logan based in part upon his observation of the demeanor of this witness while certain minor inconsistencies appear in Logan's testimony , we are not convinced, on the clear preponderance of all the relevant evidence, that there is warrant to over- rule the Trial Examiner's credibility resolution as incorrect. See Standard Dry Wall Products, Inc., 91 NLRB 544. 3 In finding the violations herein, we do not rely on any of the testimony of employee Roberts, whom the Trial Examiner discredited as "a reluctant and evasive witness." We do not regard as "admissions" binding upon the Respondents the testimony of Roberts which the Trial Examiner considered. Wholly excluding such testimony, how- ever, the evidence is ample in our opinion to support the conclusions reached. 41n the absence of exceptions , we adopt pro forma the Trial Examiner 's recommenda- tion to dismiss the allegations in the complaint that the Respondents entered into or maintained an Illegal arrangement , practice, or agreement which required the Company to hire and retain only persons who were members of the Union in good standing, or had obtained proper clearance from the Union. THE LENNOX-HALDEMAN CO. 371 (a) Offer to Richard Logan immediate and full reinstatement to his former or substantially equivalent position without prejudice to any rights and privileges previously enjoyed, in accordance with the recommendations set forth in section V of the Intermediate Report entitled "The Remedy." (b) Jointly and severally with Respondent Union make Richard Logan whole for any loss of pay suffered by him as a result of the discrimination found herein , in the manner set forth in section V of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records , timecards, personnel records and reports, and all other records needed to determine the amount of backpay due under the terms of this Order. (d) Post at its office and principal place of business in Cleveland, Ohio, copies of the notice attached to the Intermediate Report marked "Appendix A." s Copies of said notice, to be furnished by the Re- gional Director for the Eighth Region, shall, after being duly signed by Respondent Company's representative , be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced , or covered by any other material. (e) Permit posting on the employee bulletin boards at its office and principal place of business in Cleveland, Ohio, of the notice required to be posted by Respondent Union pursuant to paragraph B2(c) below, and inform the Union of this permission. (f) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent International Hod Carriers , Building & Common Laborers of America, Local 310, AFL-CIO , its officers, representa- tives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Respondent Company to dis- criminate against Richard Logan or any other employee of, or appli- cant for employment with, the Company in violation of Section 8(a) (3) of the Act. (b) In any other manner restraining or coercing employees of, or applicants for employment to, the Company in the exercise of rights 5 This notice is 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, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify Respondent Company forthwith in writing by regis- tered mail that it has no objections to the hiring and employment of Richard Logan, and send a copy of such notification by registered mail to Richard Logan. (b) Jointly and severally with Respondent Company make Richard Logan whole for any loss of pay suffered by him as a result of the discrimination found herein, to the extent set forth in section V of the Intermediate Report entitled "The Remedy." (c) Post at its office and meeting halls in Cleveland, Ohio, copies of the notice attached to the Intermediate Report marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by representa- tives of Local 310, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees and union members are customarily posted, and shall be mailed forthwith to Respondent Company for posting in its office in Cleveland, Ohio. Reasonable steps shall be taken by Respondent Union to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply therewith. IT IS FURTHER ORDERED that paragraph 6 of the complaint be dis- missed and that paragraphs 8, 9, and 11, thereof be dismissed insofar as they allege that the conduct of Respondents, or either of them, toward employee Logan as found above occurred pursuant to an illegal hiring arrangement, agreement, or practice as alleged in paragraph 6. 11 See footnote 5. INTERMEDIATE REPORT STATEMENT OF THE CASE The issue in this case is whether Respondent , The Lennox-Haldeman Co., herein called the Company, discharged Richard Logan on October 16, 1958, and thereafter refused to reinstate him, for cause or at the demand or request of Respondent In- ternational Hod Carriers, Building & Common Laborers of America , Local No. 310, AFL-CIO, herein called the Union, because Logan was not a member of the Union in good standing and/or had not obtained proper clearance from said Union for work with the Company, pursuant to an arrangement , agreement , or practice main- tained by both Respondents which required that the Company hire and retain only persons who were members of the Union in good standing and/or who had obtained proper clearance from the Union , and whether such arrangement , agreement, or practice and Respondents' conduct thereunder regarding Logan , and otherwise, were THE LENNOX-HALDEMAN CO. 373 unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and 8(b)(1) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The issues arise on a consolidated complaint issued March 30, 1959, by the General Counsel of the Board, and answers duly filed by Respondents which deny the commission of any unfair labor practices and raise affirmative defenses discussed hereafter. Pursuant to notice, a hearing was held on June 2, 3, and 4, 1959, at Cleveland, Ohio, before the duly designated Trial Examiner, at which all parties were repre- sented by counsel and had opportunity to examine and cross-examine witnesses, in- troduce relevant evidence, present oral argument, and file written briefs. Motions of Respondents at the close of General Counsel's case-in-chief to dismiss the com- plaint were denied; rulings on similar motions at the close of the entire case were reserved, and such motions are now disposed of by the findings and conclusions herein. All parties presented oral argument at the close of the case. The Company and the Union have filed briefs with the Trial Examiner. Upon the entire record in this case and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Company is an Ohio corporation having its principal office in Cleveland, Ohio, where it is engaged in the contracting of plastering services. In the course of its business it annually buys materials from outside the State of Ohio in an amount exceeding $50,000 in value. The Company is a member of Building Trades Em- ployers' Association, herein called BTEA, a voluntary association of employers in the building and construction industry in the Cleveland, Ohio, area, which conducts collective bargaining for its members with various building and construction trades labor organizations in that area, including the Union. I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Effective August 14, 1958, and at all times material in this case, the Company as a member of BTEA was party to and bound by a Laborers' Agreement executed by BTEA and the Union which recognized the Union as the sole bargaining representa- tive of laborers used by the Company in its work, and fixed their rates of pay, hours, and working conditions. The Agreement contained a union-shop clause which reads: Section 3. The Employer agrees that on or after thirty (30) days after the signing of this Agreement and for the period of time covered by this Agreement, it is a condition of employment that all Employees become and remain members of the Union and any Employees after their first thirty (30) days of employ- ment must become and remain members of the Union. In October 1958 the Company was the plastering subcontractor on a building construction job at Fenn College, in Cleveland, Ohio. Harry George Dalton was the plasterer superintendent and James Rawson was the plasterers' foreman for the Company on the job. Both men hired plasterers and laborers and are supervisors within the meaning of Section 2(2) of the Act. In the early part of October, Richard Logan sought work almost daily at the job, and was advised by Dalton that he did not need laborers at the time, but that he would hire Logan as soon as he had plasterers working and needed laborers. Logan was hired as a laborer by Rawson about 9.30 a.m. on October 16, 1958, and was assigned to the job of supplying sand and bags of gypsum to another laborer, George Roberts, who operated a mixer on the ground floor which made plaster from these materials and pumped it under pressure through a blower and hose to plasterers working on the fourth floor. Logan's specific duty was to shovel loose sand and haul bags of gypsum onto the platform of the mixer, in sufficient quantities to keep Roberts supplied at all times. Logan testified that: While at work shortly after lunch on the 16th, a man walked up to him and Roberts, gave Roberts a "right-to-work" button, and asked Logan how he was "fixed with the Union." Logan said he was not "fixed" with the Union. The man asked Logan how long he had been working there. Logan replied that he just got the job. The man asked where the foreman was, and Logan said he did not know. He then asked the man if he was going to "throw me off the job," and 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the man replied yes. Logan said he had $30 to pay on the union dues. The man replied, "$60, or nothing." Logan told him he had a family on relief and needed the job, and that he would bring the $30 to the man Saturday at the union hall to "straighten out" with him The man told him he had plenty of men down there with dues paid up who were not working. Logan replied he could not help that, but could give him $30. The man repeated, "$60 or nothing," and then walked away. Roberts who was a long-time member of the Union, then told Logan the man was Martin Hoyle, business agent of the Union. When Logan got his union dues book at the Union's office on a later date, as found hereafter, he saw Hoyle in the office, but had no conversation with him. The record shows that Roberts and Logan resumed work, and that around 2 p.m. the hose on the blower became clogged, and they had to stop the mixer and try to break the jam. Rawson came downstairs to help them, sending Logan for a length of metal lath which they used to try to remove the clog They never did get the hose freed up that day. About 3 p in. Rawson went back upstairs. About 4 p.m. he and Dalton came down, and Rawson gave Logan his paycheck and discharged him. Logan testified that when Rawson gave him the check, he told Logan never to come on a job where Rawson worked without being a member of the Union, because the "business agent just gave him hell" for hiring Logan. Logan then walked over to Dalton who was sitting in his car near the worksite, and asked him if he could get his job back if he "got straight with the Union " Dalton told him to see Rawson. Logan went back to Rawson and asked him the same question, and Rawson said yes. Hoyle denied that he was on the jobsite or talked to Logan, and Rawson and Roberts denied that they saw him there, on the 16th. While three mutually cor- roborative denials would ordinarily carry great weight against the testimony of Logan standing alone, analysis of other testimony of these witnesses deprives their self-serving negative testimony of any value and tends instead to support Logan's testimony. Hoyle admitted that: He is the only business agent of the Union who services the area which included the Fenn College job. He observes all jobs in his jurisdiction from the start, visiting them weekly to make such that the contract with the Employers Association is being observed. When he meets a new worker on a job, he usually introduces himself by name and as ibusiness agent of the Union, showing his credentials. At times he asks the worker, "How are you fixed with the Union," and asks to see the man's union book. If the worker does not have a book, Hoyle solicits him to join the Union, and if the man is interested, he invites him to the union hall on Saturday morning, when the business agents are in their offices, where he talks to him. If the worker already has a job and wants to join the Union, Hoyle explains to him that "we have a surplus of men out of work," and that if the contractor is "interested" in him, "we require him to send us a letter" which the worker brings to the Union, and "we will sign him up"; the letter is a record to show that both parties are interested in the man, and the Union requires it to pro- tect itself if the contractor becomes dissatisfied with the worker. The pattern of con- duct revealed Eby this testimony coincides in many particulars with the remarks and action ascribed to Hoyle by Logan and thus lends credence to Logan's story, and at the same time makes it inconceivable that his testimony in this respect was fabricated, particularly since Logan had never before been a member of the Union, so far as this record discloses, and hence was not likely to be familiar with the practices and activities of its business agents, other than through his contact with Hoyle. The agent also admitted that in this period it was his duty to hand out to union mem- bers literature and buttons dealing with proposed "right-to-work" legislation which was then under discussion in the State. Roberts, a union member who knows Hoyle by sight, denied that he saw Hoyle on the job on the 16th, but I do not credit him for, aside from certain admissions noted hereafter, he was a reluctant and evasive witness while under examination by General Counsel, and I am con- vinced that his testimony was largely colored by his desire not to incriminate either his employer or the business agent of his union. Foreman Rawson also denied that he saw Hoyle at the job on the 16th, and also categorically denied the remarks attributed to him by Logan on that day. This denial and his affirmative testimony about Logan's work and his discharge is the main support of Respondent's defense that it hired Logan as a plasterer's helper and discharged him the same day because he was not qualified for that work. Raw- son testified that: He hired Logan as a laborer about 9.30 a.m., after another laborer, E. Marshall, had failed to report at 7:30 to help Roberts After observing Logan at work during the morning, he concluded that he was not qualified as a plasterer's helper. While Roberts and Logan were trying to fix the jammed hose in the after- noon, Rawson sent Logan for a piece of 3/4-inch channel iron, of the type used by THE LENNOX-HALDEMAN CO. 375 plasterers in building wall foundations for plastering, but Logan apparently was not familiar with it and could not locate it until Rawson found it for him. From these circumstances, Rawson concluded about 3 p.m. that Logan was not a qualified plasterer's helper, decided to discharge him, sent for his check and paid him off at 4 p in., telling him that he had no more work for him, that Logan was "no good as a laborer, you're not a plasterer's helper, you told me you were when I hired you, you're no damn good at all," to which Logan said nothing. I do not credit Rawson's story for various reasons. First, Rawson contradicts his own testimony quoted above by his admission that a "laborer" and "plasterer's helper" are synonymous terms, that the duties of both are the same. Second, it is clear from testimony of Rawson and Dalton, and company records, that Logan was hired as a plain laborer, and assigned to help another laborer on the mixer, and that both men were classified as laborers on the payroll and were paid $3.09 an hour which under the Laborers' Agreement mentioned above was the lowest prevailing rate for building and con- struction laborers. Obviously, neither man was a skilled workman, such as a plasterer. Logan was never assigned to work on the upper floors as "helper" to the plasterers. Hence, in no sense could he be considered as hired for the work of "plasterer's helper," even if that were a higher classification of work than "laborer." Third, Rawson's conclusion that Logan was not a qualified workman has no substantial support in the record. Rawson could not point to any substantial aspect in which Logan failed to do his job. His claim that Logan did not appear to know how to handle a shovel, and appeared to "rest on his shovel" three or four times during the day, is flimsy, for he could not explain what Logan did wrong or failed to do in "handling a shovel" (assuming that some special knowledge or apti- tude is necessary for such menial work), and neither he nor Roberts testified that Logan's "resting" deprived Roberts of material. On the contrary, Rawson admits Logan kept the mixer adequately supplied with material at all times, that he never saw Roberts without enough material to keep the machine going, and that until the blower clogged up, the plasterers upstairs were getting enough plaster to keep them going. Neither Rawson nor Roberts says that he had to admonish Logan or give him further instructions about his work at any time. Equally tenuous is Raw- son's claim that Logan did not know enough about plastering to recognize and find a channel iron which Rawson told him to get, when they were trying to free up the supply hose. Rawson does not say, nor does it appear in the record, that Logan had to know all about plasterwall construction or the metal materials used in it, to perform the unskilled task assigned to him,' and it is clear from the nature of the blower jam and Rawson's testimony that all he wanted was a length of metal rod of some kind to push up the hose to break the jam. Respondent also intimates that Logan was unqualified because he called the bags of material he worked with "lime," when they were in fact gypsum, but this is no proof of incompetence, for Rawson admits that gypsum "looks something like lime only darker-colored," which indicates that Logan's assumption that he was handling lime was a natural mistake for one who was not in fact a journeyman plasterer. I therefore do not credit Rawson's version of the Treasons given for the discharge, and reject Respondent's defense of incompetence as without merit in fact.2 Logan's version of the discussion with Rawson is further supported by Roberts' admissions that: (1) Shortly before Logan's discharge, Rawson told Roberts that Logan did not "belong to the local," and the "steward said that he would have to belong to the local in order to work"; (2) he heard Logan ask Rawson "if he got in the local, if he could get a job," to which Rawson replied, "if there would be any openings, he would give him a job"; and (3) Rawson's admission that on the 17th the union steward, Tony, told him that Logan did not have a "book," to which 'In the plastering trade, according to Rawson, the helper either makes the plaster or carries it to the plasterer, builds scaffolding, and generally "takes care of" the plasterers and lathers. Here, however, Logan did not have to carry the plaster upstairs, and since he was not assigned to help the plasterers or lathers upstairs, the only work left for him was to help Roberts on the mixer. S Another indication of the falsity of this defense is the fact that, when Marshall, the laborer originally designated to help Roberts that day, finally reported for work about noon, Rawson did not lay off Logan or shift him to other work and put Marshall on the mixer with Roberts, but instead assigned Marshall to the menial task of "cleaning floors" on the 'fourth floor. Dalton, who had ordered Marshall to report to the Fenn College job that morning, testified that he had worked for Respondent about 11/ years . It is in- credible that, if Logan had already proven incompetent in the morning, as Rawson claimed, Rawson would not have laid him off and replaced him with Marshall , a man of proven service, the minute the latter appeared. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rawson replied, "I paid him off, so there is nothing to worry about"; in explaining this reply, Rawson testified that he made it after "he was telling me that-as much as telling me that he wanted a union man." 3 It is clear from Roberts' testimony and Rawson 's admissions about the talks with Tony that Rawson was satisfying the steward's insistence on having union laborers on the job , and allaying his concern over employment of a nonunion worker , by advising him of the discharge of Logan. Roberts also testified that, right after the discharge and after Rawson had walked away, Logan told him he was going to join the Union, and Roberts told Logan not to do it then but to keep in touch with him, that when the job "picked up," Roberts would talk to the supenntendent and "get you a permanent job with us "; he made this suggestion after Logan had told him he needed a job to support his wife and large family . This testimony not only further indicates that Logan and Rawson talked about union membership as a condition of employment with Respondent, but further discredits the defense of discharge for cause , for it is improbable that Roberts would have offered to help Logan get a "permanent " job with Respondent if in fact Rawson had discharged Logan for incompetence , and Roberts knew it. For the same reason , I also discredit self-serving testimony of Rawson and Roberts that the foreman told Roberts just before the discharge that he was paying Logan off because he was not a plasterer's helper, and was not any good. On Friday, October 17, Logan returned to the jobsite and told Rawson that he had $60 4 and would go to the union hall on Saturday to "get straight with the Union," and asked Rawson if he could then get his job back. Rawson said he could Logan went to the union hall Saturday morning, paid $60 to Frank Valente, another business agent of the Union , who filled out and gave him a signed receipt. The receipt serves both as a work permit and as evidence that the worker named on it is a member of the Union.5 On Monday , October 18 , Logan reported at the job before starting time, and told Rawson he was ready to work. Rawson told him "they" had sent another man out to the job in his place. Rawson had in fact hired another laborer that morning to help Roberts. Logan asked Rawson why he had let him pay the $60 to the Union and then would not put him back at work. Rawson said he did not know Logan was going to get the $60, but Logan reminded him of their conversation on Friday. Raw- son said nothing and walked away. A few days later Logan returned to the job, looking for work, and in talking to Rawson asked him if Hoyle had told Rawson to throw Logan off the job. Rawson admitted this, and added "but I am not going to have nothing to do with it." Logan was never reinstated by the Company.6 Logan's visit to the job on the 17th, his procurement of union membership and a work permit from the Union on the 18th at a cost of $60, and his admitted visits to the job in the next week seeking employment , constitute a course of action which is more consistent with the facts of his talks with Hoyle and Rawson on the 16th and thereafter , as found above, than with the formal denials of the latter two witnesses . or the Company's defense . If Logan's incompetency on the job or his alleged discharge therefor were the fact , it is inconceivable that he would thereafter have gone to the trouble of procuring union membership and a work permit at great expense to himself, or would have sought repeatedly to get back his job, if he had any reason to believe that he would be rejected by Rawson . Having observed Loran's demeanor and manner of testifying on the stand , he impressed me as a rather shy individual who, while not highly educated or fluent in his speech, and at times rather flustered during interrogation . was trying to recall the facts and tell the truth to the best of his ability. T cannot believe that he had the capability of fabricating, carrying through , and then outlining in false testimony, the series of events outlined in his testimony, in order to build a seeming case of violation of the Act s The union steward to whom Rawson referred was a man named Tony , who worked for the general contractor Rawson admits he may have seen Tonv on the job in the latter part of that week. Tony was not called by either Respondent to testify. 4IIe had borrowed the additional $50 from his landlord 5 The Union issued it membership book to Logan on November 17, 1958, which he picked up January 14, 1959 He paid union dues for December 1958 and January 1959. These findings are based on credited testimony of Logan, Valente, Rawson , James O'Toole, stipulated facts, and documentary evidence Testimony of Rawson at variance with the findings is not credited in view of his admissions noted above. 6 These facts are based on credited testimony of Logan, Rawson , and company records. I do not credit Rawson's denials of the conversations for reasons stated above , and be- cause Rawson admitted Logan came to the site several times after his discharge, but could not recall any conversations with him THE LENNOX-HALDEMAN CO. 377 It is clear from the facts found above and the sequence of events that Rawson (1) discharged Logan because he was not a member of the Union, and indicated to Logan at the time and later that he would be reinstated or reemployed only if and when he joined the Union, and (2) effected the discharge shortly after Union Agent Hoyle had indicated to Logan that he would have Logan thrown off the job unless and until he became a union member by paying it $60, the amount necessary for membership and a work permit, and had gone in search of the foreman to carry out his threat when Logan indicated he could pay only $30. While there is no direct testimony that Hoyle talked to Rawson and persuaded him to discharge Logan, I infer and find that such a conversation took place, in view of admissions of Roberts and Rawson noted above regarding Rawson's talk with the union steward on the 16th and 17th which show the Union's knowledge of Logan's employment and its desire to have him off the job because he was not a union member, and Rawson's later admissions to Logan found above. On all of the above facts and circumstances, I conclude and find that the Company on October 16, 1958, prematurely discharged Logan and thereafter failed and refused to reinstate or reemploy him because he was not a member of the Union when hired, all before the expiration of the 30-day grace period fixed by its contract with the Union, thereby discriminating in regard to his hire and tenure of employment in violation of Section 8(a)(3) and (1) of the Act, and that the Union caused the Company to discriminate against Logan as aforesaid because he had not obtained membership in the Union, in violation of Section 8(b)(2) and (1)(A) of the Act? In addition, Hoyle's threat to Logan to cause his discharge for lack of union mem- bership was in itself violative of Section 8(b)(1)(A) 8 The final question is whether Respondents' illegal discrimination against Logan was carried out under an illegal arrangement, agreement, or practice which required the Company to hire or retain as employees only those individuals who were mem- bers of the Union in good standing and/or who had obtained clearance from the Union. The only specific agreement under which both were operating was the Laborers' Agreement with the union-security provision quoted above, which General Counsel concedes to be valid. Under the Rasmussen case cited above, it is clear that despite this agreement the premature discharge of Logan for lack of membership in or a work permit from the Union was illegal, since the union-security clause did not require him as an employee to join the Union until after expiration of the 30-day grace period. Respondents contend, however, that even if his discharge was an illegal act, one instance of discrimination does not prove an illegal "arrangement, agreement or practice" as alleged in paragraph 6 of the complaint, but that only a series of such acts can support such a finding. It is clear that Hoyle's and Rawson's remarks and actions on the 16th were con- cerned only with Logan's employment without union membership; hence, I do not consider them sufficient in themselves to establish that either Respondent's discrim- ination against him on that day was part of an arrangement or practice which both had been following theretofore. On the other hand, the conversation between the union steward and Rawson the next day, coming after the fact from officials of both Respondents, affords some support for an inference that the Union generally did not want nonunion men on the jobsite, and that the Company knew about it, and was advising the Union that it had complied with that requirement by discharging Logan. In the light of that discussion the fact that Rawson on the 20th refused to put Logan back to work, though he had paid his fee and had a work permit, on the ground that "they" had sent another man to fill his place, raises a strong suspicion that "they" meant the Union, in view of Hoyle's admission that he always told applicants for membership about the surplus of paidup union members waiting for employment, and the fact that he told the same thing to Logan on the 16th when he offered to join the Union However, there is no clear proof showing who "they" were, nor how Logan's replacement got on the job on the 20th, where he came from, and whether he was already a union member. Lacking such proof, any inference from Hoyle's remarks and the Rawson-steward talk that he was sent out by the Union and for that reason was hired by the Company in preference to Logan, is offset by the inference that both Respondents were operating legitimately within the terms of the Laborer's Agreement, which General Counsel does not contend was illegal in itself or in ' Walter Rasmussen d/b/a C Rasmussen d Sons, 122 NLRB 674: Charles 0sti owski, et al, d/b/a Philadelphia Woodwork Company, 121 NLRB 1642, Midwest Transfer Com- pany of Illinois, 125 NLRB 84. 8 Atlantic Freight Lines, Incorporated, 117 NLRB 464, 473. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's application of it to this job.9 The latter inference is supported by the fact that Logan, a nonunion man, was hired "direct" or "off the street"; there is no proof that he was questioned about his union membership or lack of it when hired. There is no other substantial evidence of prior or later conduct by either Respondent which shows directly or by implication continuing discriminatory action similar to that applied to Logan, or other conduct, which would point toward a bilateral prac- tice or arrangement as charged. In the absence of such evidence, I do not consider either the Rasmussen or Phila- delphia Woodwork Company cases, supra, as applicable or controlling on this point. In each case there was substantial evidence, aside from that specifically showing a discriminatory discharge of employees, which clearly indicated an existing discrim- inatory practice or arrangement maintained by both employer and the union involved; the specific discrimination proven was an instance of the application of such practice or arrangement.10 The requirement of such proof dehors the discharge is also demonstrated by the cases of International Union of Operating Engineers, Local 150, AFL-CIO (Fluor Company, Ltd.), 122 NLRB 1374, and International Union of Operating Engineers, Little Rock Local 382-382A (Armco Drainage & Metal Products, Inc.), 123 NLRB 1833. On the entire record, I am constrained to conclude that General Counsel has not proven by the requisite preponderance of substantial evidence that the discrimination against Logan was pursuant to an illegal arrangement, practice, or agreement as charged, or that Respondents otherwise entered into or maintained such agreement, arrangement, or practice. I shall therefore recommend that paragraph 6 of the complaint be dismissed, and also paragraphs 8, 9, and 11, insofar as they charge that the conduct of Respondents, or either of them, toward Logan occurred pursuant to such arrangement, agreement, orpractice.ii 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 the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in and are engaging in certain unfair labor practices affecting commerce, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Company unlawfully discriminated against Logan in regard to his hire and tenure of employment, and that the Union caused the Company to engage in that conduct. The record does not show whether the Company's work on the Fenn College job is completed or, if completed, the completion date. Hence, I shall recommend that, if that project is not completed at the time of issuance of this report, the Company offer Richard Logan immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority of other rights and privileges. If it appears that the project is completed, no rein- statement, or placement on a seniority or other preferential hiring list, need be offered, as it does not appear that Logan had worked previously for the Company on other projects. I also recommend that both Respondents be ordered, jointly and severally, to make Logan whole for any loss of pay he may have suffered as a result of the discrimination practiced against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages on the Com- u Aside from the union -security provision , that agreement provided that : The Union, upon request , would undertake to furnish the Employer with men to perform the work coming within the jurisdiction of the Union ( art. I , sec 6 ). However , the Employer shall not be required to hire employees through the Union , or through its representatives, but "may employ them direct" ( art III , sec. 9). "In both cases the illegal practice was in part based upon application of a union's constitution , bylaws, or working rules In this case the Union's constitution was offered and admitted in evidence only to show the duties and responsibilities of its business agents ii There is no substantial proof that the Company 's employees generally have paid moneys, initiation fees, dues, permit fees , and assessments to the Union pursuant to such arrangement, agreement, or practice. THE LENNOX-HALDEMAN CO. 379 pany's Fenn College job from October 20, 1958,12 to the date of the offer of rein- statement, or the date when his services would normally have been terminated on that operation, absent the discrimination, if that date be earlier, less his net earnings during such period. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. I shall also recommend that the Union be ordered to notify the Company, in writing, that it has no objection to the employment of Logan as recommended above.13 The Union shall not be liable for any backpay accruing after 5 days from the date such notice is given. Absent such notification, the Union shall remain jointly and severally liable with the Company for all backpay that may accrue. I shall also recommend that the Company make available to the Board and its agents such payroll and other records as may be necessary to facilitate the computation of the amount of backpay due. As the Respondents were operating under an agreement containing a union- security clause which is conceded to be valid, and as I have found no substantial evidence in their operation or maintenance of any discriminatory hiring arrangement, agreement, or practice as alleged in the complaint, I do not think this case calls for the application of the broad Brown-Olds 14 remedy requiring disgorgement of all moneys paid by employees to the Union under the union-security clause aforesaid.15 As both Respondents engaged in discriminatory action which violates the funda- mental policies of the Act, I shall recommend that a broad cease and desist order issue against them. Upon the foregoing findings of fact, and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Richard Logan, thereby encouraging membership in a labor organization, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By said discriminatory conduct, which interferes with, restrains, and coerces employees in the exercise of rights guaranteed by Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 4. By attempting to cause, and causing, the Company, an employer, to discriminate against Logan in violation of Section 8(a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. By causing the Company to discriminate as aforesaid, and by other conduct found above, thereby restraining and coercing employees in the exercise of rights guaranteed by 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. 6. The unfair labor practices aforesaid are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondents have not made or maintained in effect an illegal hiring agreement, arrangement, or practice, nor have employees of the Company paid moneys to the Union pursuant to such agreement, arrangement, or practice, as alleged in paragraph 6 of the complaint. [Recommendations omitted from publication.] -Logan worked 6 or 6Y2 hours on October 16,,1958, to the end of that workday, and was paid in full for that time The record shows there was no work for him on the 17th, as the blower was still broken down and no plaster was mixed or used, and Roberts did only cleanup work that day, and Logan admits that he did not report at the job on Friday ready to work, but only to advise Rawson that he was ready to join the Union. Hence, backpay should start the next workday, October 20 19 The Union alleged in its answer that it notified the Employer to this effect on February 4 1959, and at the same time notified Logan that lie could accept employment from the Company or any other employer without reference to his membership or non- membership in the Union However, I find no proof in the record in support of that defense. 14J. S. Brown-E F. Olds Plumbing & Heating Corporation, 115 NLRB 594 15 See Philadelphia Woodwork Company, 121 NLRB 1642, 1645, and Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO ( Schenley Distillers, Inc ), 122 NLRB 613. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 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 our employees and applicants for employment that: WE WILL NOT encourage membership in International Hod Carriers , Building & Common Laborers of America , Local 310, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate or reemploy Richard Logan or any other employee or applicant for employment because of his failure to secure membership in, or a work permit from, the above -named labor organiza- tion, or any other labor organization, or in any other manner discriminate against them, or any of them , in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce em- ployees or applicants for employment in the exercise of the rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Richard Logan immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any rights and privileges previously enjoyed , on our work project known as the Fenn College job, in Cleveland, Ohio, if our work at said project is still uncompleted. WE WILL make Richard Logan whole for any loss of pay he may have suffered as a result of our discrimination against him. All of our employees are free to become, 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 modified by the Labor -Management Reporting and Disclosure Act of 1959 . We will not discriminate in regard to the hire or tenure of employment, or any term or condition of employment , against any employee or applicant for employment because of his lack of membership in, or a work permit from, any such labor organization. THE LENNOX-HALDEMAN COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS , BUILDING & COMMON LABORERS OF AMERICA , LOCAL 310 , AFL-CIO, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT WITH, THE LENNOX -HALDEMAN COMPANY 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 cause or attempt to cause The Lennox-Haldeman Company to discriminate against Richard Logan or any other employee of, or applicant for employment with, said Employer in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce such employees or applicants for employment in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL notify The Lennox-Haldeman Company, in writing, that we have no objection to its hiring and employment of Richard Logan. ABRASIVE SALVAGE COMPANY, INC. 381 WE WILL make Richard Logan whole for any loss of pay he may have suffered by reason of the discrimination against him. INTERNATIONAL HOD CARRIERS, BUILDING & COMMON LABORERS OF AMERICA , LOCAL 310, 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. Abrasive Salvage Company, Inc. and Lodge No. 360, Interna- tional Association of Machinists, AFL-CIO. Case No. 13-CA- 3225. April 25, 1960 DECISION AND ORDER On January 29, 1960, Trial Examiner Owsley Vose issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a support- ing brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Abrasive Salvage Company, Inc., Peoria, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Lodge No . 360, International Association of Machinists, AFIr-CIO, or in any other labor organiza- tion, by discharging any of its employees or otherwise discriminat- ing in regard to their hire or tenure of employment or any other term or condition of employment. 127 NLRB No. 48.