Plumbers and Steamfitters Union Local 100, etc.

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Steamfitters Union Local 100, affiliated with the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL-CIO, and William D. Zea, Business Representative [Beard Plumbing Company] and 0. W. Breland. Case No. 16-CB-155. August 1, 1960 DECISION AND ORDER On April 1, 1960, Trial Examiner Reeves R. Hilton issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 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, the brief, and the entire record in the case, and hereby adopts the findings,3 conclusions, and recom- mendations of the Trial Examiner with the additions and modifi- cations noted below. 1. We agree with the Trial Examiner that the Respondents caused the Beard Plumbing Company to discriminate against O. W. Breland in violation of Section 8(b) (2) and (1) (A) of the Act. As found by the Trial Examiner, Breland was employed by Beard on July 31, 1959, and told to report to work on August 3, 1959. Ac- cording to Beard, later on the day of hiring Union Steward Fry and Breland reported back to him and the former said in the presence and with the acquiescence of Breland that the two men had decided that "he [Breland] had better go on back down to East Texas, that he didn't think he would go to work here, or words to that effect." The Trial Examiner rejected this explanation as incredible in view of Breland's strenuous efforts thereafter to obtain clearance from the I The Respondents' request for oral argument is hereby denied as the record , including the exceptions and the brief, adequately presents the issues and the positions of the parties. 'Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel [Members Rodgers, Bean, and Fanning] 8 The Respondents have excepted to the Trial Examiner's finding that Local 301 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the US and Canada , AFL, is a labor organization within the meaning of the Act because there is no testimony regarding its structure , functions , duties, or affiliations. Although the exception appears captious inasmuch as Local 301 is an affiliate of the same international union as Respondent Local 100, we find merit in the exception in view of the state of the record . However, this does not require modification of any of the other findings of the Trial Examiner. 128 NLRB No. 48. PLUMBERS & STEAMFITTERS UNION LOCAL 100, ETC. 399 Respondent Union. Instead, the Trial Examiner found, as testified by Breland, that Breland was unable to start working because his employment had been conditioned upon his obtaining a work order or clearance from the Respondent Union and that he had been unable to secure the necessary order. We agree with these findings of the Trial Examiner. We also find that the Respondent Union caused the cancellation of Breland's employment as evidenced by Breland's credited testimony that on the evening of August 3, in a telephone conversation with Fry,' the latter said that he and Beard had talked over Breland's problem that afternoon and "Beard told him he could hire me [Breland] without clearing through that local if he wanted to, and Mr. Fry said he advised him against that, because he was using union labor and making money under them and he advised against it." 5 2. The Respondents contend that, having called Beard as his wit- ness, the General Counsel was bound by his testimony and could not impeach it. However, the rule against the impeachment of one's own witness does not apply to contradictions by other witnesses 6 The Re- spondents also assert that Beard was a more credible witness than Breland. The Trial Examiner found to the contrary and the record considered as whole does not justify upsetting that credibility determination' 3. The Respondents contend that they were denied the opportunity adequately to prepare their defense. They assert that the complaint did not advise them of the factual basis on which the legal conclusions were based and that attempts to secure this information by a bill of particulars and discovery were unavailing. We find no merit in this objection. The complaint alleged that through their agents William Zea, busi- ness representative, and Howard Fry, job steward, the Respondents on or about July 31 and August 3,1959, caused Beard Plumbing Com- pany to discriminate against 0. W. Breland, the Charging Party, in regard to employment at the Texas Instruments jobsite in Dallas, Texas, because Breland was not a member of Respondent Local 100 and had engaged in other concerted activities. In a motion for a bill * Fry did not testify. 5 The Respondents have excepted to this testimony as inadmissible hearsay. We find that Fry's statement was made concerning a matter within the scope of his authority as an agent of the Respondent Union and that the statement was admissible not only as evidence that the statement was made, but also as evidence bearing on the truth of the subject matter of the statement. Local 1016, United Brotherhood of Carpenters etc., AFL-CIO, et al. (Booker Lumber Co., Inc.), 117 NLRB 1739, 1746, enfd in relevant part 273 F. 2d 686 ( C.A. 2) ; Local 135, International Brotherhood of Teamsters, etc. (Capital Paper Company Consolidated Sales , Inc.), 117 NLRB 635, enfd. 267 F. 2d 870 ( C A. 7), cert denied 361 U S. 914, rehearing denied 361 U S. 945. 9 3 Wigmore on Evidence $ 907 (3d ed. 1940 ) ; Elise Civil, etc. v. Waterman Steamship Corporation, 217 F. 2d 94, 99 (C.A. 2 ) ; Hammitt v. Westbrook, Tex. Civ. App , 262 S.W. 2d 260, 261. 7 Standard Dry Wall Products, Inc., 91 NLRB 544, 545 , enfd 188 F. 2d 362 (C.A 3). 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of particulars, the Respondents requested the General Counsel to specify (1) any other representatives who may have caused Beard to refuse to employ Breland, (2) the nature of other concerted activities which Breland engaged in that allegedly caused Respondents to dis- criminate against him, (3) and the means by which the Respondents caused Beard to discriminate against Breland. At the opening of the. 2-day hearing, the General Counsel, in response to Respondents' reit- eration of its request for a bill of particulars stated that, in addition to Zea and Fry, named in the complaint, two other named representa- tives-Cooper and Sharp-were involved in the unlawful conduct on the part of the Respondents. The Trial Examiner denied the request for a bill of particulars stating as to (1) and (2) that if, at the con- clusion of the General Counsel's case, the Respondents felt they needed additional time to meet the testimony coming from Cooper or Sharp, or with respect to other concerted activities, then Respondents could apply for a continuance. As to request (3), the Trial Examiner de- nied it outright as being a matter purely of evidence. The Trial Ex- aminer also denied the Respondents' request for discovery. At the close of the General Counsel's case, the Respondents moved for a continuance claiming that Breland's testimony was a surprise and that they needed additional time to review his testimony and to inter- view witnesses. The Trial Examiner denied the motion. We find no error in any of the rulings of the Trial Examiner. The complaint, as well as the information furnished the Respondents by the General Counsel at the opening of the hearing, apprised the Respondents of the nature of their alleged unfair labor practices and gave them suffi- cient information properly to prepare their defense. Although the complaint named Steward Fry as one of the two representatives by whom Respondents committed the unfair labor practices, and as the hearing proceeded it became clear that Steward Fry was a prime mover in the events which resulted in the filing of the unfair labor practice charges, the Respondents did not call him as a witness or explain why he was not called. As to the denial of the request for discovery, the Board's procedures make no provision for discovery. This lack is not a denial of due process.' The question whether a con- tinuance is to be granted and the extent of it is a matter within the sound discretion of the Trial Examiner. We perceive no abuse of that discretion in this case. On the basis of the entire record, we are convinced that the Respondents had adequate information and opportunity to prepare its defense and that any claimed lack thereof is not to be attributed to the rulings of the Trial Examiner. 8 IN' L R B v. Globe Wireless, Ltd, 193 F 2d 748, 7:31 (C A. 9) , see honorable Julius H. Miner et at. v. H. Leslie Atlass, 364 U S 854 PLUMBERS & STEAMFITTERS UNION LOCAL 100, ETC. 401 ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Plumbers and Steamfitters Union Local 100, affiliated with the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO, and its officers, representatives, agents, successors, and assigns, including Business Representative William D. Zea, shall : 1. Cease and desist from : (a) Causing or attempting to cause Claude C. Beard, Sr., and Claude C. Beard, Jr., a partnership doing business as Beard Plumbing Company, its officers, agents, successors, or assigns, to discharge, refuse to hire, or otherwise discriminate against O. W. Breland in violation of Section 8(a) (3) of the Act. (b) In any like or related manner restraining or coercing employees of, or applicants for employment with, Beard Plumbing Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in 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) Make whole O. W. Breland for any loss of pay he may halve suffered by reason of the discrimination against him in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post in conspicuous places at the business office of Respondent Local 100 and at all places where notices or communications to its members are customarily posted, copies of the notice attached hereto By letter dated December 9, 1959, the Respondents notified the Company, with copy to Breland, that it had no desire to cause discrimination against the latter, and that it had no objection to the Company tendering an offer of employment to, and employing, Bieland As this letter is in the form usually required of a union in order to terminate its backpay liability, we shall not direct that a second notice of like import be served upon the Company. Ave shall also terminate the Respondents' backpay liability 5 days after December 9, 1959, the date of the Respondents' letter to the Company described above Bakery and Confectionery Workers' International Union of America, Local 12. AFL (The Great Atlantic d Pacific Tea Company (Pittsburgh Bakery)), 115 NLRB 1542, 1543 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marked "Appendix." '0 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by a representative of Respondent Local 100 and William D. Zea, be posted by them for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Sixteenth Region signed copies of the aforementioned notice for posting by Beard Plumbing Company, the Company willing, in places on the jobsites within the jurisdiction of Respondent Local 100 where notices to employees are customarily posted. Copies of said notice to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by the Respondents, as indicated, be forthwith returned to the Re- gional Director for disposition by him. (e) Notify the Regional Director for the Sixteenth Region, in writing, with 10 days from the date of this Order, what steps have been taken to comply herewith. 10 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." APPENDIX NOTICE TO ALL MEMBERS OF PLUMBERS AND STEAMFIrFERS UNION LOCAL 100, AFFILIATED `W7ITII THE UNITED ASSOCIATION OF JOURNEY- MEN & APPRENTICES OF THE PLUMBING AND PIPEFITPING INDUSTRY OF THE U.S. AND CANADA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause Claude C. Beard, Sr., and Claude C. Beard, Jr., a partnership doing business as Beard Plumbing Company, its officers, agents, successors, or assigns, to discharge, refuse to hire, or otherwise discriminate against O. W. Breland in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of, or applicants for employment with, Beard Plumb- ing Company, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)^(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. PLUMBERS & STEAMFITTERS UNION LOCAL 100 , ETC. 403 WE WILL make whole 0. W. Breland for any loss of pay he may have suffered as a result of the discrimination against him. PLUMBERS AND STEAMFITTERS UNION LOCAL 100, AFFILIATED WITH THE UNITED ASSO- CIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE U.S. AND CANADA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Dated---------------- By------------------------------------- (WILLIAM D . ZEA) (Business Representative) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge, duly filed, the General Counsel of the National Labor Relations Board, through the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated November 6, 1959, alleging that the above-named Respond- ents have engaged in unfair labor practices in violation of Section 8(b)(2) and (1) (A) of the National Labor Relations Act, as amended. The answer of the Respondents denies the commission of any unfair labor practices . Pursuant to notice a hearing was held before the duly designated Trial Examiner at Dallas, Texas, on January 19 and 20, 1960 . All parties were represented at the hearing and were afforded opportunity to adduce evidence , to examine and cross -examine witnesses, to present oral argument , and to file briefs. On February 23, counsel submitted briefs, which I have fully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The complaint alleges that Claude C. Beard, Sr., and Claude C. Beard, Jr., are individuals engaged in a partnership doing business under the trade name and style of Beard Plumbing Company, herein called the Employer, under the laws of the State of Texas, and maintains its office and principal place of business at Dallas, Texas, where it is engaged in business as a mechanical contractor, performing plumbing, heating , and air-conditioning services and selling products related to its services . In the year preceding the issuance of the complaint the Employer pur- chased materials, equipment, products, pipes, furnaces , air-conditioning equipment, and supplies for sale and use in its operations , valued in excess of $50,000, which were shipped into the State of Texas from places outside the State. The Respondents do not dispute these allegations nor contest the jurisdiction of the Board . I find the Employer is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated that Local 100 is a labor organization within the meaning of Section 2(5) of the Act and that William D. Zea is one of its business representatives. I also find that Local 301 of the United Association of Journeymen & Appren- tices of the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL-CIO, of Marshall, Texas, is a labor organization within the meaning of Section 2(5) of the Act. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The issue The question presented is whether the Respondents, without any agreement or arrangement with the Employer, caused the Employer to discharge and/or refuse to hire Breland by refusing to issue a work order to Breland because of his non- membership in Local 100. B. Background of events Claude C. Beard, Sr., testified he had been in the plumbing business for some 30 years and in the summer of 1959 he was performing work on a project for Texas Instruments Company, near Dallas, as both a contractor and subcontractor. Beard commenced work on the project, which was still in progress, in February 1957. During the summer of 1959 he employed from 100 to 125 men and at the time of the hearing he had between 40 and 45 pipefitters on the job. Beard stated that he was a member of the Mechanical Contractors Association, which had a collective-bargaining agreement with Local 100, and he felt "obligated" to the agreement by virtue of his association membership. However, the com- plaint contains no allegation whatever in respect to this agreement, or to any other agreement, arrangement, or understanding between Local 100 and the Employer In the summer of 1959, Howard Fry was job steward for Local 100. As job steward, Fry handled complaints involving the employees and any complaints or disputes with other craft unions concerning work jurisdiction. All hiring was performed by Beard, or his son, and he obtained new men pri- marily through employees on the job and Local 100, although at times he secured men by newspaper advertising and from the Texas Employment Commission. As part of his hiring procedure, Beard notified Local 100 of all hirings by telephone, so that the Local would have a record of the men working for him. C. The discriminatory treatment of Breland Breland lived in Jefferson, Texas, was a journeyman pipefitter and a member of Local 301, and a close friend of Fry. On Thursday evening, July 30, 1959, Fry telephoned Breland at his home to inquire if he wanted a job and Breland replied that he did, that he had been out of work for some time. Fry then asked if he could come to Dallas that night, some 180 miles distant. Breland said he was not certain but he would call back. Later he telephoned that he could not make it that night. Fry thereupon told him to come to Dallas in the morning, "clear through the local," and then see him at the jobsite. Breland said he would do so. On Friday morning, July 31, Breland drove to Dallas and as he was not familiar with the city, he called a friend of his, Edgar J. Nesbitt, to meet him and drive him to the office of Local 100. Breland and Nesbitt arrived at union headquarters about 10 30 and both went into the union hall where they saw a Mr. Sharp, a union official, standing behind a cage or window. Breland approached the window, presented his dues book from Local 301 to Sharp and stated he was looking for work. Sharp handed him the book and said there was no work available for pipefitters in Dallas but he heard there might be work in Wichita Falls. Sharp then walked away. Breland and Nesbitt left the union hall and drove to the jobsite, arriving there around 11 or 12 o'clock. Breland met Fry who stated they would see Beard about going to work. As they reached the office Fry stopped to talk to an employee and while thus engaged, a man came out of the office and announced Beard wanted to see Breland. Breland went into the office where he met Beard who stated he had been highly recommended for the job and inquired if he could start work on Monday, August 3. Breland answered he could, whereupon Beard stated he would call Zea or Local 100 and get him a work order. Beard then Placed a telephone call, asked for Zea and said, "I am employing O. W. Breland, and give him a work order to go to work on Monday." Beard mentioned Breland was a friend of Fry's and the conversation ended. Beard told Breland to go to the Local and pick up the work order and report for work Monday Breland and Nesbitt then drove back to the Union hall where Breland told Charlie Cooper, assistant business agent, that Beard had called to get him a work order so he could go to work Monday. Cooper looked at Breland's dues book and then brought Zea to meet Breland. Zea informed Breland that he should have cleared through the Local before going to the jobsite Breland replied he had cleared through Sharp, who was present in the room. Zea stated he was the only one who could grant clearance and that there was no work available in Dallas for Breland. PLUMBERS & STEAMFITTERS UNION LOCAL 100, ETC. 405 Breland pointed out he had been hired by Beard and that Beard had called to get a work order for him. Zea made no mention of any telephone call from Beard and again stated he had no jobs available. The meeting then ended. Nesbitt testified that Zea informed Breland he was supposed to get his work through the Local and Breland replied he had asked for work through the Local before he went to the jobsite. Zea told him to get a travel card if he wanted to work for Beard. Breland complained it was 180 miles to his home and he had already been promised a job by Beard. Breland failed to get a work order, so the two men went back to the jobsite. Upon arriving at the jobsite Breland informed Beard that he had failed to get his work order and Beard answered, "Well, that is up to Mr. Fry and the Local." The conversation ended on that note. Breland then explained the situation to Fry, who stated he would call Zea and get the matter straightened out. The two men went to the office where Fry attempted to reach Zea by telephone, but was unable to do so. Finally, about 5:30 they left the office and drove to Fry's home. That night Fry telephoned Zea and following his conversation Fry told Breland there had been a misunderstanding, which had been straightened out, and that Breland should get his travel card and come back Monday to go to work. Nesbitt testified substantially the same as Breland regarding the latter's con- versation with Fry at the jobsite. He also stated that the three men waited in the office for about 3 hours while Fry attempted to reach Zea by telephone. Over the weekend Breland obtained a travel card from Local 301 and on Monday morning he and Nesbitt went to the union hall. There, Breland presented his travel card to Zea, who examined it and stated; "Breland we don't have any work available for you here." Breland queried; "What about the job I have already been hired for and supposed to be working now?" Zea answered: "Well, Mr. Beard called me and told me not to refer no more men out there, no more men to him." Zea then took Breland into his office and explained he had some men who were laid off that weekend so he could not send Breland out on a job. Breland pointed out he had been hired Friday and it did not seem right to him. Zea said he could not afford to send him out while he had men in layoff status. Breland asked if he could stop by the job to see Fry and Zea said that he could, that he would get Fry on the telephone, which he did. Breland spoke to Fry and when Fry inquired what was the trouble Breland said he did not know. Fry then asked to speak to Zea and Zea repeated the reasons why he could not send Breland to the job. Zea told Breland that if he would leave his travel card he would find a job for him. Breland informed Zea he had incurred expenses in obtaining his travel card and that he would not leave it since he could not afford to be coming to Dallas without assurance of work. The meeting then ended. Breland and Nesbitt again went to the job, arriving there about noon After some words about Breland's failure to get a work order, Fry told him to deposit his card with the Local and he would get work later on. Breland said he could not be running back and forth and that it cost $5 to deposit his card with the Local. Fry gave him $10 and Breland left for home, without depositing his card. Nesbitt testified to the same effect as Breland regarding the Breland-Zea conver- sation at the union hall and the Breland-Fry conversation at the jobsite. The same evening Fry telephoned Breland at his home to ask if he had deposited his card and Breland replied no, he had not left it. Fry requested that Breland take no action and he would try to straighten out the matter with Zea. Fry also related that he and Beard had discussed the problem that afternoon and Beard stated "he could hire me without clearing through the Local if he wanted to." However, Fry advised him not do so "because he was using union labor and making money under them." Breland remarked, "Well, Mr. Beard hired me," and Fry responded, "No. He will not." i Apparently, that ended the conversation. On September 15, 1959, Breland filed a charge against Local 100 and Zea. On September 18, he telephoned Beard for a job and Beard told him he had no openings, that he had laid off seven men that day. Beard mentioned he had received a copy of the above charge. i The General Counsel submitted a motion to correct the transcript by changing 11rel: nd's above-quoted remark to read : "Will Mr. Beard hire me?" The General Counsel contends the context and answer indicate a question was asked and answered. Counsel for the Respondents, in their brief, oppose the motion. I do not consider the matter important and certainly it is not decisive of the issue herein. In any event, absent a clearer show- ing that the transcript is inaccurate I deny the motion. 577684-61-vol. 128--27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beard testified that in the latter part of July or August, Fry spoke to him about hiring a friend of his in East Texas who was a good pipefitter. Beard stated he could use a good man, so "bring him up and put him to work." Fry said he would do so. The next day or so, Fry introduced Breland to Beard and stated Breland was ready to go to work. Beard said "O.K. . . . You let me know and just come on out." When asked if he called Zea, following the above conversation, Beard answered, "On that I wouldn't know." That afternoon Beard met with Fry and Bre- land in or near the office. Fry, who did most of the talking, informed Beard he did not think Breland would go to work, or it would be better if he did not go to work, because Breland "didn't know whether he wanted to clear into Dallas or not or whether he would get his travel card and clear into it or not." Neither Fry nor Breland gave any reason for Breland's not going to work other than the matter of the travel card. Beard said it was up to Fry and Breland and Breland did not work on the job. In respect to Fry's remark about clearing into Dallas, Beard explained he had been in the plumbing business for many years and "it just has been an old Spanish custom for years that when you go from one town to another you take a travel card with you from the union. We are still talking about employing union men." Beard denied that he telephoned Zea to request a work order for Breland or that he told Breland he would have to have a work order from the Local in order to work on the job. Beard stated he would call Zea when he hired a man but not for the purpose of obtaining clearance from the Local. When asked if he had ever hired anyone who did not have a clearance from the Local, Beard said he did not know whether or not they had clearances, if they had clearances they were not presented to him. About December 15, 1959, Beard received a letter from the Local, dated December 9, signed by Zea, stating that unfair labor practices charges had been filed against it by Breland. In substance Zea said he had no desire to cause or attempt to cause Beard to discriminate against Breland and while the Local was not requesting Bre- land's employment, the Local had no objection to Beard tendering an offer of em- ployment to Breland and employing him. However, Beard did nothing whatever and did not even discuss the letter with Zea, Fry, or Breland. Zea denied that on or about July 31, he, or anyone at the Local's office, received a telephone call from Beard requesting that a work order or clearance be given to Breland. Zea was questioned whether Breland came to his office on the above date pursuant to Beard's telephone call in respect to his going to work Monday and Zea. responded: He [Breland] said something to that effect. Actually, the case of the matter was he came up and he asked for this work order and I told him that I can't give anybody a work order unless I receive a call for it and I told him that I had not received a call for him from anybody. Breland was not given a work order or clearance. Fry did not testify at the hearing. Concluding Findings On the basis of Breland 's undisputed testimony , and Beard's admission that he had "already hired" Breland at the time of their first meeting, I find that Breland was employed on July 31, and was scheduled to report for work on August 3. The only factual controversy centers on whether Breland's employment was conditioned upon his securing a work order or clearance from Local 100. After the foregoing arrangements had been settled, Beard according to Breland, stated he would obtain a work order for him from Zea or the Local. Following a telephone call to Zea, during which he requested a work order for Breland, Beard instructed Breland to pick up the order at the Local and report for work Monday. Accordingly, Breland went to the Local's office, presented his union dues book to Zea, informed Zea he had been hired by Beard, and asked for his work order pur- suant to Beard's telephonic request. Zea refused to issue the order because Bre- land had not been cleared by the Local and there was no work available for him. Breland thereupon returned to the jobsite where he advised Beard that Zea had refused to give him a work order and Beard simply replied that was up to Fry and the Local. Breland then explained his situation to Fry who, after talking with Zea, advised Breland to get a travel card from Local 301 and return Monday for work In accordance with Fry's suggestion, Breland secured a travel card from his own Local and on Monday, August 3, presented the card to Zea. This PLUMBERS & STEAMFITTERS UNION LOCAL 100) ETC. 407 time Zea refused to issue him a work order on the grounds that Beard did not want any more men referred to him and there were members of the Local who were not working. Zea stated if Breland would leave his travel card he would find a job for him, but Breland declined the offer. Breland again discussed the matter with Fry but nothing was accomplished. Although Beard admitted he notified the Local of all hirings, he denied that he requested Zea to issue an order to Breland or that he told Breland he had to have a work order in order to go on the job. From his second conversation with Bre- land and Fry, Beard knew that Breland's inability to obtain a work order stemmed from the fact that he was not a member of Local 100 and did not have a travel card from Local 301. He also knew that in employing union men under these circumstances, a travel card was necessary. Despite the fact that Beard had already employed Breland, he made no attempt to permit him to work without an order and left the matter to the job steward and the Local. Zea, likewise, denied Beard requested a work order for Breland. Zea admitted Breland asked for such an order and mentioned something to the effect that Beard had sent him to the office for that purpose. However, Zea refused to issue the order the first time because Breland had not cleared into the Local and the second time for the reasons that Beard did not need any more men and some members of the Local were unemployed at the time. In my opinion Breland gave a frank and fair account of the events which resulted in his being denied employment or the right to work on the job. On the other hand Beard and Zea impressed me as somewhat reluctant to offer any reason or explanation for the treatment accorded Breland, other than Beard did not predicate Breland's working on the job upon issuance of a work order or clearance from Local 100. Accordingly, on the basis of the demeanor and manner in which the witnesses testified, I accept the testimony of Breland, rather than that of Beard or Zea. But, apart from this finding, the undisputed evidence refutes the idea that Breland decided to abandon his employment or that his failure to work on the job was attributable to any cause other than the Local's denial of a work order. I find it unbelievable and incredible that having been hired by Beard, Breland would, for no reason at all, apply to Zea for a work order, upon refusal to report back to Beard and Fry, then drive 180 miles to his home for the purpose of obtaining a travel card, and return to Dallas to present his travel card in order to secure a work order from Zea. I have no difficulty in finding that Breland's employment was con- ditioned upon his securing a work order or clearance from Local 100. The remain- ing issue to be decided is whether the refusal by Zea and Local 100 to issue a work order under such circumstances constituted a violation of the Act. The complaint alleges that the Respondents caused the Employer to discriminate against and to refuse and fail to employ Breland because he was not a member of Local 100. The complaint does not allege the discrimination was accomplished by virtue of any agreement, understanding, or arrangement between the Respondents and the Employer. In essence, the Respondents contend that the refusal to provide Breland with a work order cannot be considered as violative of Section 8(b) (2), unless there was an existing hiring arrangement or practice requiring the issuance of such an order.2 I must reject this contention as a valid defense to the conduct found above. The Board in the Koppers Company case,3 under facts similar to those found herein, held that apart from any agreement or understanding with the employers, the local and its business agents, by causing or attempting to cause construction com- panies to deny employment to, or to remove from jobs, union members who did not have the proper "union book" or "card" for a particular job, or were members of another local, thereby encouraged membership in the local in violation of Sec- tion 8(b) (2) and (1) (A) of the Act. The Board's order was enforced by the Circuit i The Respondents also contend that the evidence is insufficient to show that Fry was their agent with respect to the Breland matter. It is conceded Fry was the job steward for Local 100. The undenied testimony of Beard and Breland- clearly proves that Fry's participation in the events herein was strictly in line with his duties as job steward. I, therefore, find Fry was an agent of the Respondents at all times material herein. a Local 542 International Union of Operating Engineers, AFL-CIO ( Koppers Company, Inc, et al.), 117 NLRB 1863. See also International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 92, AFL-CIO (Pittsburgh Des Moines Steel Company), 119 NLRB 1605, and Morrison-Knudsen Company, Inc., et at., d/ b/a Robinson Bay Lock Constructors, A Joint Venture, 123 NLRB 12. Cf. Harbur Terminal Company, 126 NLRB 659 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court of Appeals for the Third Circuit 4 Again, in Schenley Distillers,5 the Board held that absent a lawful exclusive referral agreement the local "caused" the employer to discriminate against an applicant for employment by the business agent's refusal to approve his employment because of his nonmembership in the local, even though there were no threats of retaliation by the local. In that case there was no allegation in the complaint of any existing hiring agreement or under- standing, although the local and the employer, through statements by the local in the course of contract negotiations, erroneously proceeded under the impression that the local had a legitimate interest in the selection of employees for employment. The Board's order was enforced by the Circuit Court of Appeals for the Seventh Circuit.6 Since Breland's employment was conditioned upon clearance from Local 100, the Local by failing to provide Breland with such clearance thereby encouraged membership therein, in violation of the rights guaranteed Breland under Section 7 of the Act and caused Beard to discriminate against Breland in violation of Section 8(a)(3) thereof? By engaging in such conduct and activities the Respondents thereby violated Section 8(b)(2) and (1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Employer 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 the Respondents have engaged in certain unfair labor practices it will be recommended that they cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. Having found that the Respondents, on August 3, 1959, caused the Employer to discriminate, in violation of Section 8(a)(3), against O. W. Breland as to his hire or tenure of employment and/or as an applicant for employment, it will be recom- mended that 0. W. Breland be made whole for any loss of pay suffered as a result of the discrimination against him.8 Backpay shall be computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289. The General Counsel does not request the Browns-Olds remedy (115 NLRB 594), hence it will not be recommended in this case. From the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Beard Plumbing Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Respondent Local 100 and Local 301 are labor organizations within the mean- ing of Section 2(5) of the Act. The Respondent William D. Zea is an agent of Respondent Local 100 within ,the meaning of Section 8(b) of the Act. 3. By causing Beard Plumbing Company to discriminate against O. W. Breland in violation of Section 8(a)(3) of the Act, thereby restraining and coercing O. W. Breland in the exercise of his rights under Section 7 of the Act, the Respondents, Local 100 and William D. Zea, its business representative, have engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. The said unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 4 N L R B v Local 542, International Union of Operating Engineers, AFL, et al., 255 F 2d 703. 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 O N L R B v Local 392, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of U.S. & Canada (Schenley Distillers), 277 F. 2d 56. 7 The Radio Officers' Union, etc (A. H. Bull Steamship Company) v. N.L.R B., 347 US 17, 39-43. s In accordance with the Board's practice, it is not recommended that the Respondent Zea be held individually liable for backpay. International Hod Carriers', Building and Common Laborers Union of America, Local No. 83, AFL-CIO, et al. (Consolidated Con- struction Company, Inc.), 124 NLRB 1131